Software companies say overbroad patents held by others are among their biggest problems, leading to wasteful lawsuits and skyrocketing costs. The way they see it, patents that cover broad, basic concepts have helped give rise to the so-called “patent troll” – a company or individual who owns a patent and uses it not to make something but to sue innovators for infringement. Patent trolls sometimes win hefty damages or even, as in the BlackBerry case, try to shut down supposed infringers through court injunctions.
Coming to the rescue of programmers and other innovators is former corporate attorney Dan Ravicher, 31, who runs the Public Patent Foundation, a nonprofit devoted to filing requests with the U.S. Patent and Trademark Office (PTO) to reëxamine and revoke patents it considers overbroad.
In 2004, after Ravicher filed for a reëxamination of major patents owned by Microsoft for the FAT file-tracking standard, the PTO issued an initial decision rejecting those patents. It reversed that decision earlier this year. But in May, in another case initiated by Ravicher’s group, the office rejected some of Forgent Networks’ patent claims on the JPEG photo file compression standard. (That decision is not yet final.) Other Ravicher targets have included Columbia University and Pfizer. The group has been a pioneer in using this oft-overlooked technique to challenge patents outside the courts.
Ravicher thinks many major patents should never have been granted because the ideas they protect are so obvious. Intellectual-property suits have most famously affected open-source development – witness SCO’s claims of ownership to parts of Linux – but they’ve also interfered with innovation in commercial software, he says. Technology Review talked with Ravicher last week about the effects of patent policy on software innovation.
Technology Review: Is the patent system an important part of the current structure for rewarding innovation in the software industry?
Dan Ravicher: When developers think about why they’re writing today, it’s because they’re being paid to do the work, or because they have a passion and a desire to do it, or they want to get name recognition. Developers of software aren’t really incentivized by the potential to get a patent.
TR: If a patent will be out of date in a few years, why does it make a difference to competitors whether that patent was issued or not?
DR: The patent on some specific, highly tailored application is very rarely of any importance to anyone. The most valuable patents are ones that are on standards or other basic tenets of software technology that may still exist in the future.
TR: How are these patents on standards abused? Can a patent holder, regardless of the legal outcome, inflict damage on a developer?
DR: In a lot of software patent cases we’ve seen, the patent holder ends up losing – but only in court. But that doesn’t mean the developer didn’t lose a substantial amount of time and money and distraction. Simply because many software developers are resource-deprived, they’re denied a fair day in court to prove their innocence.