Patent Law

Mundane

By Gary Odom and Jordan Kuhn

Indubitably unbiased, InformationWeek's Microsoft blogger, Dave Methvin, laments small fry with software patents. "It seems like every few months, some obscure company is awarded a patent for some relatively mundane idea, then turns around and sues the companies that have been using it... It's a shame that companies can exploit the patent system to prevent advances in software."

Dave had his knickers in a twist over Cygnus asserting 7,346,850 against Microsoft, Apple and Google. '850 claims "iconic software environment management." Dave claimed "in five minutes of searching" he found prior art, in Windows 98, in beta at the time of filing. Alas, Dave doesn't seem to know patent law. There is no absolute novelty requirement, Dave. An inventor gets a one-year grace period for public use or product sale. That'll toast Dave something fierce if he finds that out. Now there's a patent problem worth fixing. Patents ought to be reserved for new inventions.

As far as the patent system preventing advances in software, Dave's got it wrong. Patents don't prevent advances. They monetize them as intellectual property. The problem lies in the way companies deal with patents, not the patents themselves. Microsoft, Apple and Google are quite fond of their software patents, and are happy enough to swat each other with them, ending with a cooing cross-license. Microsoft, for one, hates paying a "patent tax," but doesn't mind imposing one. What the little boys that like to act big don't like are dime-store inventors, like Cygnus.

What companies ought to do, rather than reinvent the wheel, is scour patents for good ideas. Willfulness is a tough nut to crack nowadays, post-Seagate. If they are looking for cover regardless, they could always hire a third-party consultant, like Patent Hawk, who can vet the patents to weed the invalid. Find the patents of interest, and scoff them up. That's the Intellectual Ventures business model. Cheaper than litigation.

But arrogance blinds. Microsoft, for example, had a chance to buy the Intertrust patent portfolio, but wasn't willing to shell out. So Sony bought it. Then sued Microsoft for it, netting over a hundred million more than it paid.

Dave, maybe you ought to start lamenting how stupid some too-big-for-their-britches companies are about the business of software patents.

Full post as published by The Patent Prospector on December 27, 2008 (boomark / email).