July 01, 2005
Patently InferiorWarren Keuffel
From peanut butter and jelly to software, lobbyists and trolls use patents as cudgels to grab further gain to the detriment of small firms and open source projects.
A few weeks ago, readers of the business pages were entertained by the sarcastic remarks a federal judge inflicted upon the J.M. Smucker Co. Smucker's had asked the United States Patent and Trademark Office (USPTO) to grant a patent for its Uncrustables snack food, asserting that its process for sealing jelly between two crimped layers of peanut-buttered bread represented a quantum leap in PB&J-making technology. Not so, ruled Judge Arthur Gajarsa of the U.S. Court of Appeals for the Federal Circuit, who said his wife often squeezes together the sides of their child's peanut butter and jelly sandwiches to prevent the jelly from oozing out. "I'm afraid she might be infringing on your patent!" the jurist quipped.
Unfortunately, Judge Gajarsa and his colleagues haven't applied an equally sensible standard to the world of software patents. Amazon's infamous "one-click" e-commerce patent is the poster child for software patents of the PB&J ilk that should have been rejected by the USPTO. Out in the Cold
Attorney Dan Ravicher of the Public Patent Foundation and the Free Software Foundation estimate that more than 50 percent of approximately 300,000 registered software patents contain no innovation and were, therefore, granted in error by the USPTO. But, as with so many other areas of law, members of Congress listen to lobbyists with deep campaign contribution pockets—filled by companies counting on an overworked, understaffed and ineffectual patent office that will rubber-stamp their applications, whether the idea is innovative or not.
The large firms that own most of the software patents obtain them primarily for defensive purposes: To avoid lengthy litigation, they enter into cross-licensing agreements in which the parties agree not to sue each other over patent infringements.
Smaller firms, as well as free and open-source software projects, are left out in the cold, vulnerable to attacks of the patent clones. Indeed, Ravicher determined that 283 patents—27 held by Microsoft—could be used as the basis for patent lawsuits against Linux. Opinion about whether Microsoft will launch an attack appears divided between those who believe that the public relations fallout would be too extensive (as happened to SCO) and those who claim that diminishing market share will force Microsoft into the courtroom. Patent Proliferation
IBM and Sun, both committed to marketing open-source software portfolios, have begun legal maneuvers in anticipation of a Microsoft assault. IBM contributed 500 patents to the free and open source community, and Sun soon followed with an additional 1,600 patents.
Patent warfare, sometimes called "patent terrorism," has also spawned patent trolls, mercenary companies that exist only to buy patents and use them to extort settlements from firms unable or unwilling to pay for the legions of attorneys necessary to defend against charges of patent infringement (such defenses typically cost in the $4 million range). An auction held recently in San Francisco demonstrates how the patent system has been perverted from its original constitutional role of encouraging science and invention. Commerce One, a bankrupt dot-com, auctioned off a portfolio of 39 e-commerce patents. A Dallas lawyer representing an anonymous client posted the winning $15.5 million bid; observers expected that the patents would be used as ammunition by a patent troll, but Novell identified itself as the winning bidder and said that it had bought the patents as part of its defensive strategy.
Earlier this year, sanity briefly sounded in the European Union, where software patents are currently unenforceable. Reacting to a proposal from the European Commission that would allow American-style software patents, the European Parliament voted to ask the Commission to reject the plan. But, as in the United States, deep-pocket lobbyists got busy and the Commission refused to reconsider the proposal.
The IP wars are being fought on several fronts. Open Source Development Labs—the Mitch Kapor-funded group I wrote about in my February column ("Give It Back")—has invested $4 million in the Software Freedom Law Center. Noted IP attorney Eben Moglen chairs the organization, and Ravicher serves as legal director.
These organizations can't do it alone—they need your support. Write me at warren@warrenkeuffel.com.
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