Monday, 12 September 2011

The great patent fight

Software patents are a menace to IT development. Instead of protecting innovation, they are being used to stifle it.


Names: Joseph-Michael and Jacques-Etienne Montgolfier
Invention: First manned hot air balloon
Patent infringed: Taking a wig to an altitude over 2,000 ft

Okay, I have relented: in spite of my disdain for updating your Facebook status every five minutes, I’m going to get a smartphone. I’ve therefore been looking for a suitable handset and my current preference is for a Samsung. I don’t have any strong preferences between brands – to me, a handset is a handset – but I do want to show my support for Samsung in their patent battle with Apple.

Since most of you won’t know what I’m talking about, it works as follows: Samsung has been banned from selling its Android tablet in Germany following legal action from Apple over patents it holds. Similar action in Holland has stopped the sales of three Samsung Android phones. However, in turn Apple is being sued by HTC for infringing patents that the latter company brought from Google. Meanwhile, Microsoft claims that Android phone violate its patents and consequently HTC pays royalties to Microsoft, whilst non-compliant Motorola is being sued in the US courts. But Microsoft have been successfully sued by Canadian firm i4i who claimed Word violates their patents. I could go on, but you get the idea.



Just to clarify, not a single line of code has been stolen. The allegations are that patents have been infringed. In principle, patents are supposed to protect innovation. To take a simple example, if you hold an active patent for the gas burner, and someone else uses it in a hot air balloon, you still have a claim. Nothing wrong with this – you invented something useful, you deserve the credit for it.  But software patent cases often bear no resemblance to protecting innovation. Legal threats are sometimes made without disclosing which idea was stolen, and when they are revealed in court, they are frequently concepts as generic as “viewing and organizing photos on a device with a touchscreen display”, or even – I kid you not – ”units of commodity that can be used by respective users in different locations”. You may as well claim the hot air balloon violates the patent of standing inside a basket.

The UK doesn’t actually allow software patents (an attempt to implement this across the EU was stopped by the European Parliament in 2005), but we’re far from immune. Due to the lawsuit in Holland, the supply route to Samsung phones in the UK has been disrupted. If a device you buy in the UK infringes a US patent, you may be paying a royalty to the patent holder so that the same device can be sold in the US. It is hypothetically possible you could break the law by taking a UK-purchased MP3 player to a country where the MP3 file format is patented. Worst of all, a lot of small-scale UK mobile phone app developers – even those who sell apps to UK customers – are facing legal threats from firms who apparently do nothing but purchase patents and issue lawsuits. Why? Because the Android and iPhone app stores are located in the US.

It is difficult to see how software patents encourage or reward innovation. Credit for the modern smartphone can be shared between Blackberry and Apple’s iPhone, but they don’t need patents to prevent rivals entering the market – they are doing perfectly well competing against Android and Windows Phone 7. The revolutionary MP3 format was patented, but the equally effective ogg vorbis format (which does the same job as the MP3 format but is open source) was developed without the incentive of royalties. No-one is suggesting that you should be allowed to copy-paste someone else’s code, but that is covered by copyright laws. The abuse of the system means that software patents are becoming a menace to software development, and the laws need to be urgently reviewed, if not scrapped completely. Otherwise, the old joke of Microsoft patenting ones and zeroes may be changed to a prophesy.

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