The Tech Curmudgeon – software patents and Samsung vs. Apple

The Tech Curmudgeon read last week that Samsung was challenging Apple’s iPad patents, demanding that Apple prove its patents were valid. About damn time. Whatever lawyer it was in the patent office who granted the first software patent needs to be run out of town on a rail. And the lawyer who granted the first “design appearance” patent needs to be tarred and feathered and then run out of town on a rail.

Software patents are one of the most egregious misuses of patent protection that exist. There was a time when the patent office would reject patents for 3rd Grade math or simple sorting algorithms, but no longer. For the last couple of decades, anyone could code an obvious calculation method for a spreadsheet program and then patent that code. With that patent in hand, you could not only sell a crappy spreadsheet program, but you could also sue all the other spreadsheet program developers who used your patented code for a simple, obvious calculation. Yay, more litigation!

After a while, though, some people figured out that you didn’t even have to waste time and money developing a real, functional, useful product – you could simply write the code, patent it, and sue the pants off everyone who had the audacity to program “2+2=4.” And lo, patent trolls were born. Some patent trolls have evolved away from that whole, pesky “writing the code” part and simply bought patents from companies who had tried to make something useful but discovered that they couldn’t afford the licensing fees.

And then some brilliant lawyer realized that patents were legally stronger than trademarks if they could be effectively defended, so the entire idea of a “design appearance” patent was born. That’s one of the things that Apple has sued Samsung over – making a tablet that looks too much like Apple’s patented iPad design. Appearance patents are often overturned, but it’s cheaper for most companies to simply roll over to the Apples and Motorolas and Samsungs of the world.

And yes, The Tech Curmudgeon meant it when he wrote “Samsung.” Samsung is no better than Apple here, using dozens if not hundreds of its own crappy software and appearance patents against Apple’s crappy software and appearance patents. Instead of competing in the marketplace, instead of letting their consumers decide whose products work better, instead of playing by the goddamned rules, Apple and Samsung are squaring off against each other like two gangs of thugs, each composed of patent lawyers armed with baseball bats, clubs, and other blunt weapons. Even Google, that supposed bastion of “don’t be evil,” has had to get down and dirty in the courthouse back alleys with their own crappy patents. That’s why Google just bought Motorola’s phone division – not because they care about manufacturing Motorola’s phones, but because Motorola has a ton of crappy patents that Google can use to defend their precious Android software from Apple, Microsoft, IBM, Nokia, et al.*

Software and appearance patents have become so absurd that at this point it’s safe to say that, had James Maxwell been working for IBM when he discovered the equations governing electromagnetism, IBM would have demanded a piece of the action for everything from radio to television to Ethernet networks. Had Isaac Newton been working for Intellectual Ventures when he invented calculus, college students would be required to add “™ IV” after every derivative and integral they wrote. And had Aristotle worked for Apple when he developed classical logic, we’d have to fork over a nickle to Apple every time we made a logical argument.

Patents used to actually mean something. They used to mean that someone had created something new and unique, and that the government considered the creation so valuable that the creator was worthy of holding a temporary monopoly on who built or used it. No longer. Now patents mean that some loser came up with some hack idea and just happened to get his submission to the patent office 30 microseconds before the other 2,000 losers who had the same hack idea. Instead of patents being used to advance science, technology, and culture, they’re being used as weapons in a gang war that does nothing to advance anyone but patent lawyers. Patents today are clogging up the courts and impeding scientific and technological progress, the exact opposite of what was intended in Article 1, Section 8 of the Constitution of the United States!

So The Tech Curmudgeon is thrilled that Samsung is demanding a review of Apple’s patents – because it’ll open up the gates to a review of Samsung’s own patents, and then spread beyond to Motorola and IBM and Intellectual Ventures and all the patent trolls who are sucking the life blood from technological advancement. And when it’s all done, The Tech Curmudgeon bets that 99% all the design and software patents that have been issued in the last few decades will be tossed out as invalid. As they should be.

And when that’s all done, it’ll be time to shine that same spotlight on gene patents.

So says The Tech Curmudgeon.

(*All these companies hold legitimate and real hardware patents too, so the patents aren’t all crap. Just the overwhelming majority of the patents used in litigation.)

7 replies »

  1. I just finished riding herd on an MA thesis project addressing this very issue. Trust me when I say that if anything, the Tech Curmudgeon is being kind about the patent trolls.

  2. This is fabulous. Really, really good. Clear writing, interesting argument, wonderful examples.

  3. Such an encouraging sight: a sanguine curmudgeon!

    I mean, in expecting that a major battle and review of software patents, if it happens, will be the undoing of that complete mess.

    I wish. But then, I was traumatized by the things early on.

    The companies that exist to hawk patents on things too obvious to patent go back even further than the last couple of decades, at least to 1985. It was then that our company was doing its initial public offering, and the process was going well as such things go. Two or three days before it was to go effective — not sure which, but it was not more than three — we got an urgent call from our lawyers, that there was a patent claim against us. This one turned out to be a wonder, and rather a classic.

    Patent 2 + 2 = 4, you say? Aristotle patenting logic? Well the XOR cursor was both! US Patent 4,197,590 This is patently, excuse the expression, obvious, and there’s prior art that we turned up that day; but there’s no fighting extortion; not at the expense of casting a shadow on your IPO. Must. Not. Do.

    Fortunately these guys were fairly decent to deal with. We know because our counsel told us so. (Lawyers, including the best ones, necessarily have different thresholds of sleaziness from laypersons, without which they wouldn’t survive a week in the profession.) Anyway, all we had to do was write a check for $25,000 delaying the offering one day to get everything signed, and we were Go.

    Sidelight on that one, given us a couple of years later by Alvy Ray Smith: The same guys had come around to Pixar with whole portfolio of patents in hand. But they made the mistake of bringing the genius who had invented it all. I mean *them* all. The patents. The problem was that all the people who had worked on graphics in the early days knew each other. Over the XOR patent, Smith looked the guy in the eye and said, in effect, “You’re trying to claim a patent on that? That obvious technique that we all were using for years? Go on!” They backed down on that and some other claims, but Pixar still had to buy into some things that were common knowledge.

    There’s an interesting proposal for fixing software patents (and by extension gene patents) without relying on the courts to be reasonable. Perhaps all it would take would be for a few powerful companies to have an attack of honesty. The idea is collective security against patent claims.

    Memory refresh and hollow laughter time: Note that in 1993 when this was written, Oracle had denounced the patent system and renounced the use of software patents except in self defense.

    One last note: Is anyone aware of how software patents got started? It’s an amazing and shocking tale, which I have on the authority of a patent lawyer whom the company invited to make a presentation on software patents, in the early 1990s.

    Come to think of it, I have no confidence that this posting will survive submission, and anyway long comments are a drag. So I’ll try to present if briefly in another posting.

  4. Ought to have mentioned that the XOR patent had already been litigated to some extent, and had held up. So the odds weren’t good for a challenge, no matter how good a case one might have. But even if the odds had been good, the case would have taken a long time, and you don’t go to the public with potentially huge claims hanging over your offer, at least if you expect anyone to buy that risk.

    So, did software patents get established by law? No way. By legal precedent? Certainly not; but that was the claim. (Cf. the Supreme Court non-precedent that established that corporations were persons with the same rights as actual persons, except, you know, more.) Here’s the process:

    In the good old days you couldn’t patent a program because that would be like patenting a mathematical formula, which was ruled out by statute. Then in the 1970s there was a case involving a genuine manufacturing process that included the use of a computer. The patent application was denied because a computer program was involved. On appeal, the court ruled that that step didn’t rule out a patent on the whole process. Good sensible law, that. No way it could open the patenting of algorithms, a matter that was already being discussed in forums like the ACM, the main professional group then and now.

    Wish I could give the citation, but I don’t have time for the search just now. Any patent lawyer presumably would have it memorized.

    And so the status was quo for a few years. Then the Patent Office decided that the case did make software patents legal: after all, a program is just a realization of an abstract machine via a universal machine machine, haven’t you read Turing? and it’s ok to patent a machine! QED.

    And so the PTO started accepting patent applications for programs and for algorithms. Which were reviewed by Patent Office experts. Who were, of course innocent of any knowledge of software (and of mathematics? After all, that stuff has never been patentable) and pretty soon we got to see the power of the dark side of the farce, which has been with us ever since.

    There are, of course, protections against unqualified people getting into patent law and spreading disorder and unrealistic judgement. For instance, to practice patent law, a lawyer needs special qualifications, among them a degree in a relevant technical field. As of the early 1990s, when the issuance of software patents was going full speed ahead, the list of relevant technical fields did not include Computer Science.