TR: Can you give an example of how that has affected software development?
DR: Some of the initial patent trolls in the late 1990s and early 2000s were personally going around and asserting their patents against small companies. When they got letters, many of the startups just decided to pack up business instead of continue with it, so that stopped their development. If you go to the opposite extreme, you can see the cases that have been brought against Microsoft by patent trolls. Resources at Microsoft that should have gone to advancing technology to make functionality go quicker, better, cheaper actually had to be wasted on reinventing the wheel to get around this patent that was being asserted against them, by someone not doing software development.
TR: So sometimes you are actually sympathetic to Microsoft?
DR: They recognize that software patents are posing a threat and are causing harm to all software. Some people think it’s just open-source software that’s being prejudiced by software patents. It’s not.
TR: In other cases, though, you view Microsoft as an aggressor. In January the PTO rejected a request of yours that would have stripped Microsoft of its patents for its FAT file-tracking software. What does this say about how effective the reëxamination weapon can be, and will any good come of this case despite the rejection?
DR: What Microsoft did, in responding to the patent office’s [initial] rejection of its claims, was to take some positions regarding the scope of its patent that made the patent narrower than when it was originally issued. Now there will be room for people to implement a FAT system without infringing the new claims even though it may have infringed the old claims. So although Microsoft will still have a patent, it will be a much weaker patent.
TR: You’ve had tentative success fighting Forgent’s patent on the JPEG standard, the subject of litigation targeting dozens of users ranging from Apple to Xerox. Has that led to any positive repercussions?
DR: The judge in the litigation construed the claims of the patent very, very narrowly. So it’s pretty much a slam-dunk that Forgent will lose as long as that claims construction gets upheld. I think I remember the judge noting that this reëxamination was going on and that there were still questions about the validity of the patent.
TR: You say the system gives an intrinsic advantage to big developers over small developers. So why have many small, open-source efforts like OpenOffice and Firefox succeeded?
DR: There are many reasons. One could be that they don’t yet pose the commercial competitiveness necessary to justify a major patentee challenging them. The developers themselves may not be suitable defendants. The patent system hasn’t yet gotten as bad as it could be for them – though it does pose a threat.
TR: How would you describe that threat?DR: The software ecosystem actually prefers free software, open software, sharing and learning what others have done and advancing that. The patent system, this form of government regulation, gets in the middle of the software ecosystem and mucks it up. The winners in the software marketplace should be determined by consumer choice – whichever products are cheaper and faster – not by some regulatory scheme.