aTypical Joe: a gay New Yorker living in the rural South

Sunday, July 31, 2005

Patent abuse

Regular readers know I’m no fan of copyright as practiced today. So it won’t surprise you to learn I don’t like the patent practice (copyright on steroids) much either, most particularly as manifested in the software patent.

Today Randall Stross writing in the Times looks at how Microsoft is going about achieving its goal of 3,000 patents. He includes this background:

All software published in the United States is protected by strong copyright and trademark protection. Microsoft Excel, for example, cannot be copied, nor can its association with Microsoft be removed. But a patent goes well beyond this. It protects even the underlying concepts from being used by others - for 20 years.

As recently as the 1970’s, software developers relied solely upon copyrights and trademarks to protect their work. This turned out rather well for Microsoft. Had Dan Bricklin, the creator of VisiCalc, the spreadsheet that gave people a reason to buy a personal computer, obtained a patent covering the program in 1979, Microsoft would not have been able to bring out Excel until 1999. Nor would Word or PowerPoint have appeared if the companies that had brought out predecessors obtained patent protection for their programs.

[...]

The legal environment changed not because of new legislation, but by accident. One important ruling here and another there, and without anyone fully realizing it, a new intellectual-property reality had evolved by the end of the 1980’s. Now software could enjoy the extraordinary protection of a patent, protection so powerful that Thomas Jefferson believed that it should be granted in only a few select cases.

So where did Microsoft get the number 3,000?

“We realized we were underpatenting,” Mr. Smith [the company’s senior vice president and general counsel] explained. The company had seen studies showing that other information technology companies filed about two patents for every $1 million spent on research and development. If Microsoft was spending $6 billion to $7.5 billion annually on its R&D, it would need to file at least 3,000 applications to keep up with the Joneses.

That sounds perfectly innocuous. The really interesting comparisons, though, are found not among software companies, but between software companies and pharmaceutical companies. Pharma is lucky to land a single patent after placing a multihundred-million-dollar bet and waiting patiently 10 years for it to play out. Mark H. Webbink, the deputy general counsel of Red Hat, a Linux and open-source distributor, said it was ridiculous for a software company to grab identical protection for work entailing relatively minuscule investment and trivial claims. He said of current software patents, “To give 20 years of protection does not help innovation.”

Stross’s solution:

If Congress passed legislation that strengthened and expanded copyright protection to include design elements as well as software’s source code, formalizing the way the courts interpreted the law in the 1970’s, we could bring an end to software patents and this short, unhappy blip in our patent system’s time line.

Somehow that scares me too.