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.
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Attorney Dan Ravicher says software patents bog down innovation. (Credit: Public Patent Foundation)
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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.
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Massachusetts Institute of Technology
Comments
If so many of these patents are "obvious", why don't they and their associates who see the future of software and the internet as "obvious" map out all the applications and processes we are all "obviously" going to see in the future and publish a white paper. In that way, all future software patent applications will be made moot and invalid by all the prior art that the white paper would cover. Mr. Ravicher would solve the problem once and for all with his prognostications within the current rules and avoid all that messy rewriting of patent law.
He could also keep some important industries out of his way that depend on patents, such as pharmaceuticals, semi-conductors, etc. That let's him continue to single out software companies, especially small ones, who have invested their limited resources on patenting their inventions and now are trying to defend them.
cventers
09/06/2006
Posts:1
Most people, who see these obvious ideas, don't rush to the patent office specifically because they think many of these ideas are too general and too obvious.
But the megalomaniacal trolls, who often tend to think they're about to save the world, rush to the patent office and patent any idea or concept they can think of. Then they do nothing for years, but wait in ambush until someone actually tries to do something in real life...Then the trolls resurface with their "submarine patents" and slap you with a lawsuit. Enough of these parasites!
gabrielg01
09/06/2006
Posts:496
What I do have a problem with is the plethora of poor quality patents issued by the USPTO that gives the patent system globally a bad name. Couple that with a litigous dispute resolution system and you have what you have.
What you need in the US is a low cost and effective patent revocation system. We in Europe have these systems. The US re-examination system is problematic for various reasons.
I think that what Public Patent Foundation is doing is good simply because it is forcing the USPTO to look closely at its quality of patent examination. I dont see them as Troll bashers unless of course you regard Microsoft, Forgent, Columbia University and Pfizer as Trolls!
NICKWHITE1
09/07/2006
Posts:1
If it costs 30-50K to file and proescute a patent (up from 8K, 10 years ago) and it ends up that the patent is worth more, for whom does the troll troll? Does anyone seriousluy think that folks like Lemelson did NOT contribute to society? Certainly do not begrudge copyright protections that extend out 70-100 years? have any of these academics actually tried to prosecute a patent?
What is the name of the most egregious troll? Is he a rock star? A dot-com dude? Or a mortgage broker? No, maybe, if there were a PHD attached to the name of the person, then that, would make it okay! Who is being harmed?
If there are trolls why is it that IBM, Microsoft, Intel and all other huge US and international company, file for patents? Are they sapping innovation? Do you think these people can fight the troll?
This is nonsense. No one takes issue with the 99.9% of patents that have no economic worth, nor the fact that as a government institution they provide much clearer title to all other "innovators" and the simple fact that unlike any other government sanctioned monopoly, at least there is a system by which the claims can be challenged.
Plus, the patent office is probably the only entity of the US government that actually makes MONEY! Even the treasury loses money on pennies and dollar bills!
I would like an interviewer or the interviewee to point out just what patent that has sapped innovation in the economy. Just the patent number, please!
missed
09/06/2006
Posts:1
India Inve...
09/08/2006
Posts:1
There are investment people who trade in patents. They are actually not trying to do any product development, but simply milk the system. A golden goal is to acquire a comprehensive patent portfolio, which then would be like a fortress for a given technology area. Such a portfolio gives the owners almost a monopoly like dominance. It is easy to see how such practices actually hinder innovation.
Another variation on the theme is when law firms acquire patents based on their 'litigability' value. Again, these people don't look forward to building any new products. They are just looking for an opening to attack some company and extract some cash.
Another trick is when a company gets wind that a competitor is filing a patent, and they quickly file a similar patent, even though they have no such product. The USPTO has to automatically go into complicated and time consuming procedures to decide who gets the patent. The result is that the challenger manages to drag out the patent issuing time by an extra 1-2 years, therefore hurting the competitor.
Then the infamous Lemelson trick...one could file a temporary patent application, claiming that the product was still in development. The loophole was that you could refile the same application 'n' times. This is how Lemelson maintained his machine vision patent application for decades, even though he never built anything. Lemelson was a fraud, not a real inventor. Thank god this loophole is now closed.
If you know other dirty patent practices, let's expose them.
gabrielg01
09/08/2006
Posts:496
1. Microsoft has been granted a patent for the conversion of objects into XML files.
http://software.silicon.com/applications/0,39024653,39130795,00.htm
2. Patent on Method and Apparatus for Spherical Panning. "A graphics display terminal performs a pan operation with respect to a view motion center to effectuate spherical panning, thereby providing perspective and non-perspective views..."
http://www.igda.org/columns/lastwords/lastwords_Mar05.php
3. Sony's Brain Stimulation Patent. "Even if the Sony technology was actually working (which it is not, by the way -- it is just an idea, no working prototype was built or tested), it would be a long time before we would know where to aim it."
http://novaspivack.typepad.com/nova_spivacks_weblog/2005/04/about_sonys_bra.html
On the last one, what if a real inventor finds a way to make this device that Sony is just dreaming about... simple, the inventor would have to pay for making the machine.
Patents are an obsolete system that comes from the old monarchies in Europe. Didn't we declared independence of them and their methods?
cronodrago...
10/31/2006
Posts:2
In a more general view, I remember reading an article saying that most patents do not value the paper on which they are printed.
What do you think of the many big players filing hundreds of patents every year and abandoning them after one year, for the only reason that this is good for their communication to the stock markets?
One may consider that the “gold rush” of patents is a good thing. But then, the obvious consequence is that, one day, the average value of patents becomes uncertain. This is not the reason why patent laws were invented.
GerardB
09/17/2006
Posts:2
What this is about is a certain kind of market "fundamentalism" that believes if a little IP is good, then more must be better. This kind of thinking is just stupid. Software is incremental in it's very nature; you change things a little bit, you do things a little differently. This is the same with science. Every now and then, science undergoes a paradigm shift, but 99% of people's careers, efforts and progress are made by fleshing out "obvious" implications of a preestablished theory, and so it is with software. No one is going to sit downa dn hurridly write down every implication and possible user interface variation upon the advent of the GUI because that would be a stupid waste of time that contributes nothing to scoiety- UNLESS the US government decides that writing everything down as fast as possible bestowes an unnatural monopoly on the person who does it.
How does it get lost to some fanatics that patents were designed as a way to coax inventors to share their know-how with society for society's good? This is not a natural right we're talking about, like life and liberty.
developer
09/23/2006
Posts:1