Practical Technology

Actually, I don’t think we should kill all the patent lawyers. Some of my best friends are patent attorneys — no, really. But I’d happily stick a knife into the American patent system.

In the beginning, the U.S. patent system was meant to encourage inventors and innovation. Abraham Lincoln is reputed to have said, “The Patent System added the fuel of interest to the fire of genius.” That was then. This is now.

Unless the Supreme Court does the right thing and tosses out business practice and, by implication, software patents with the proper decision in the Bilski case, we’re stuck with a system designed to wreck anyone who actually tries to implement his own ideas.

You see, with many software patents there is no specific language, no hard code, but only descriptions of general processes that can be implemented in multiple ways. Now, you might think you could avoid patent trouble by looking up the appropriate patents and not using them. Good luck with that.

As Bradley M. Kuhn, then executive director of the Free Software Foundation, told me a few years back, it’s “difficult today to write any software program — be it free software or proprietary — from scratch that does not exercise the teachings of some existing software patent in the U.S.A.”

Back when Steve Ballmer, Microsoft‘s CEO, first started talking about how Linux patents might be violating Microsoft’s patents in 2004, Dan Ravicher, an attorney and executive director of the Public Patent Foundation, said, “There is no reason to believe that GNU/Linux has any greater risk of infringing patents than Windows, Unix-based or any other functionally similar operating system. Why? Because patents are infringed by specific structures that accomplish specific functionality.”

But let’s say you do search for existing patents. You think you’re clear of any possible problems, but then you get hit by a patent lawsuit anyway. And guess what: You’re in more trouble than ever. Why? Because now you could end up paying up to three times more in penalties because you might have been aware that what you were doing was in violation of a patent. With patent lawsuit damages already commonly running into the hundreds of millions of dollars, this kind of legal reversal is enough to kill all but the largest companies.

Is this a great country or what?

This is why Microsoft, despite being the loser in some whopping patent lawsuits, such as the $200 million-plus it owes i4i for violating its patents and the $1.5 billion it once owed Alcatel-Lucent, is happy to threaten other companies, especially those that use Linux or open-source software, such as Amazon and TomTom into licensing agreements.

You see, it isn’t a question of whether Microsoft’s patent claims are valid or not; that’s not important. What’s important is that if a company settles any potential patent worries beforehand with a few million, it avoids spending millions in legal costs and the remote chance of having to pay out hundreds of millions in damages.

God help any small company targeted by an industry giant with a patent complaint. The legal costs alone would ruin most of them.

What we really need is a complete overhaul of the U.S. patent system. If the Supreme Court doesn’t strike down business process patents, the federal government should take up the problem. As it is now, any software program can be attacked either by patent trolls — companies that do nothing but collect patents and then look for companies that might be implementing the ideas within them — or by big companies wanting to stomp out competition.

A version of this story first appeared in ComputerWorld.