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Software Patents Gone Mad


Software patent infringements are increasingly becoming the subject of litigation. For those not in the programming field, software patents are issued for what I would call programming techniques or methods. An analogy would be if a carpenter patented "the use of nails to secure beams to the wall", "the use of a roof to keep rain from falling on the interior of a house", or "the use of cement to create a sidewalk".

A way of solving a problem is patented, that in most cases is something already widely in use by programmers. Even if not widely in use, can a method of doing something be the basis of a monpoly grant? It also appears to me, a programmer, that in many of these cases the patent office and the judges (let alone the juries who hear these cases) don't have much of a grasp of what the technical issues are nor of the "prior art", a pre-condition of a patentable invention. It has become somewhat of a cynical hobby among programmer friends of mine to find ever more ludicrous examples of patents covering methods that we have all used for years in creating computer programs.

Kodak has recently settled a patent lawsuit with Sun Microsystems over a technique used within "the Java programming language", a computer software technology. Kodak claims that Sun had infringed on their patent on for the way that one application asks another application for help. The articles about this lawsuit stated that Microsoft's new ".NET platform" could fall under the same patent. (Mises.org uses this technology for its web site). Kodak initially asked for $1 billion, half of Sun's profits over the period of the alleged infringement. They eventually settled for $92 billion dollars. This is one of several high-profile software patents that has recently been charged or settled.

Another, by Eolas, claims to have a patent that would cover HTML, a data format that is used for the vast majority of web pages on all web sites, and another suit claims that JPEG, one of the most popular formats for graphic images on web sites has been patented. One of the all-time silliest was Amazon.com's patent on their "one-click" method of ordering. This web site feature enabled customers to add a book to their shopping cart and purchase it in a single click. Barnes and Noble was prohibited by a court order from using this technique on their web site, so they added a pointless second click to their accelerated ordering process.

I believe that the very concept of software patents is fundamentally unsound. It represents an illegitimate grant of monopoly privilege, and is creating a huge cost not only for the technology industry, but for any industry that uses technology. (See Rothbard on patents). The success of any one of these lawsuits could subject the users of software to legal liability, or additional charges. Perhaps every web page view will require the payment of a licensing fee to patent holders.

A vast proliferation of rent-seeking has been spawned by software patent lawsuits, as companies patent an increasing number of popular and widespread programming techniques and then seek to use the courts to obtain damages against companies that have used them. This has spawned a counter-movement of technology companies attempting to either lock up their own patents or pour more energy and money into attempts to insulate themselves from legal claims.

More on Kodak:

The Eolas suit on HTML:

Robert Blumen is an independent enterprise software consultant based in San Francisco.

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