| Patent fights about money, control |
Jun. 05, 2007
Analysis -- Patent fights are fights about money. The secondary issue, the one that makes the headlines, is control. To really understand what's going on in the current patent posturing involving Microsoft, Novell, and a host of open-source companies and groups, it helps to keep those factors firmly in mind.
What makes this current brewing battle particularly puzzling is that it is based on software patents. The naïve can confuse software patent issues with those of copyright and trademarks. Unlike copyright and trademarks, however, where one can point at the offending code or trademarked image or language, there is no such bright shining line in software patents.
With most software patents, there is no specific language, no hard code, but only descriptions of general processes that can be implemented in multiple ways. This, as the Public Patent Foundation, or PUBPAT, points out, has led to undeserved patents being granted. Some of the reasons why this happens, according to PUBPAT, is "that the Patent Office may not be aware of significant prior art (knowledge already in the public domain), that the Patent Office's employees are not given sufficient time and resources to do an effective screening of patent applications, and that the rules regarding how patents are granted are skewed through perverse patent policy to favor granting patents."
The result? Bradley Kuhn, chief technology officer of the Software Freedom Law Center, explained in August 2004 (when he was executive director of the Free Software Foundation) when the issue of Linux and patents was first seriously considered, that it's "difficult today to write any software program—be it free software or proprietary—from scratch that does not exercise the teachings of some existing software patent in the U.S.A."
Because of these factors, we have ended up with a legal environment where hundreds of millions of dollars can turn on obscure software patents. Indeed, in the infamous case between BlackBerry maker Research In Motion and patent-holding company NTP, RIM ended up paying $612.5 million even though, at the time of the settlement, three of NTP's five patents had been given nonfinal rejections by the U.S. Patent and Trademark Office and the two others had been given final rejections.
To read the rest of Steven J. Vaughan-Nichols' eWEEK.com article, go here.
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