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Tech Visits the Patent Well Again. And Again. March 7, 2010

Posted by Peter Varhol in Software development, Strategy.
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Just when you thought it was safe to go back out onto the street, two patent issues are making the news.  The first, and better-known, is the Apple patent infringement suit against HTC, and indirectly Google (the HTC smartphone in question uses Google’s Android operating system).  This has to do with some of the touch-screen features on the iPhone.  Apparently the last time Apple filed a patent suit was when it sued Microsoft over the look and feel of the MacOS, back in the late 1980s.

The second recent patent issue was that Facebook was awarded a patent for news feeds on a web site.  Yes, news feeds.  Specifically, “a method for displaying a news feed in a social network environment,” according to the title of the patent.

I’m not a lawyer, and I’m not going to pass judgment on either the validity of these patents or any patent infringement claims.

But I’ve had enough.  I appreciate the need to invest in research and development in software, and to protect that investment from blatant copying in some manner.  But there is more wrong here than right.

There are practical issues against software patents.  Few software patents have a shelf life of anything more than a couple of years.  The technology moves on, or the underlying platform moves on, and the patented “invention” is no longer relevant.  If the work that leads to patents are in fact intellectual property, the industry would be far better served by spending the time and money developing further IP rather than defending that which already exists.

There are also significant gray areas in software patents and their defense.  While at the time the MacOS look and feel suit against Microsoft seemed like a slam-dunk for Apple, Apple in fact lost the case.  In reality, Apple had a difficult time proving anything against Microsoft, having admitted prior art at Xerox PARC, and not wanting to compare its clean and intuitive GUI to Microsoft’s poorly-implemented Windows 1.0 efforts.

I know firsthand that patent infringement is nowhere near as cut-and-dried as some would like to make it.  And don’t think that the US Patent and Trademark Office doesn’t contribute in a big way to the ambiguity.  I once had to research a software patent held by my company in a preliminary investigation that was supposed to be a prelude to legal action against a competitor.  I found that there were forty-two (yes, 42!) patents claiming the same invention with substantially the same sequence of steps.

Ours was among the first applied for and awarded, but that didn’t mean any of the others had copied our intellectual property.  We ultimately dropped the idea of a suit.  Not long after my investigation, a shift in underlying software platforms rendered this invention obsolete.

Ultimately, winning or losing a software patent infringement suit rarely makes a difference in the success or failure of a company or technology.  Both Apple and Microsoft user interfaces have evolved greatly since 1988, and both are success stories in their own ways.  The failed lawsuit contributed in no way to this outcome; there is no alternative history here.  Rather than waste time on patents and patent defense (or defense against patents), let’s see some butt-kicking R&D and innovative products instead.  Really.

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