perfidy

Well, the Microsoft joke is (a) a joke about Microsoft's monopolistic behaviour and (b) a joke about the laxness of the patent office in rejecting trivial patents. It's not a comment about the overlap of the two, necessarily, I think. I agree that I haven't heard of Microsoft causing trouble with patents. I still think it's a funny article thought.

The sort of behaviour from Microsoft that angers me is, for example, them forcing PC vendors to pay for Windows even on computers that they ship without an operating system. I think my anger in that case is justified. That is one reason I put together my computers from parts; I don't want to pay for Windows if I'm not going to use it.

So I think it's legitimate to make fun of them, but you are right that in this case they are not the villains.

And yes, the biggest problem with patents is the implementation, but I think there are some fundamental flaws with the concept of software patents as well. However, I would be happy if the implementation was fixed, then we could see if there were still issues that needed to be addressed.

re: MSFT, of course the Onion piece was a joke, and a funny one. Often, I hear people conflate the company's aggressive flirtation with the edges of antitrust to some imaginary bullying in patent hoarding. And patent hoarding is quite far from the MSFT truth, but I get your drift.

Yes, your reaction to their abuse of market power is justified. They're ripe for complaint and ridicule in that regard, even if they're not in violation of patent law.

Regarding patent law implementation, picture this imaginary solution, which I'm making up as I type it:

USPTO could start by summarily throwing away 9 of every 10 applications for software patents, without ever looking at them. A truly patentable invention would surely be worth multiple submissions, no?

Business process patents should be treated similarly, with the small exceptions that one more out of every ten should be jettisoned, and that these items should not be allowed resubmission after initial rejection.

Next, they could, instead of the first line of review being some USPTO functionary, run the remaining 10% of applications past a broad panel of software industry experts. Given proper paperwork control, concern about idea-leaching would be kept to a minimum, since patent applications today are public documents after submission, even before patents are granted.

If that panel of experts had reason to reject, they'd be dead-on with their documentation of the rationale for such recommendation, and once rejected in this manner by USPTO after the outside review, appeals should be strictly limited.

Finally, rejection counts should be tracked by inventor, and after a number of consecutive rejections (aside from the 90% autorejection of non-business-process items first mentioned), there should be a five year period in which no new submissions would be accepted. Simply submitting a business process patent of any sort should also trigger the five year cooling off process.

I believe that the steps I just pulled out of my ass and typed above would increase the quality of our software patent process by at least 521%.

Nicholas:

I think I see where we're talking past each other. The concept of patents, and patent law itself, makes crystal clear sense to me.

The implementation, in the US, at least, leaves a lot to be desired. For instance, if something's common sense, it qualifies as trivial. Not trivial in value, but trivial enough that if someone was issued a patent for it, that patent was issued invalidly. When that happens, you quite rightly think it's a bad deal. And I agree with you. If I were a lawyer, and so inclined, I could make a good living, I think, challenging as much as half of the pan-headed, shit-brained output of the USPTO.

I think you're way off base on the Microsoft comment, compared to reality. MSFT, IBM (a perennial member of the "most patents of the year" club), and anyone like them, don't collect royalties on all of their patented ideas, or even on a majority. The primary use for patents in that environment is as "trade bait", to ensure that, if someone comes after them for patent infringement, they can counterclaim. The result is that most such patents are cross-licensed royalty free, and no individual potential inventor gets nicked for using them. It's really sort of stupid, with each company chasing patents on sometimes trivial ideas, simply to protect themselves from everyone else doing the same thing.

In such cases, the only complaint that individual inventor might have is that, damnit! He wanted to patent the idea! For that situation, I've got zero sympathy. If it's trivial enough that two or more people can easily invent the same method independently, then it's not likely to be the subject of a valid patent.

Set aside software for a minute, and direct your ire at the stupidity called "business proces patents" for tax avoidance schemes. From yesterday's installment of Marketplace, I bring you Putting">http://marketplace.publicradio.org/shows/2007/04/11/PM200704116.html]Pu… patents on saving money

Proof positive not that patents are bad, but that the patent process is utterly broken.

I probably do think of patents differently to you. Put it this way. Say someone says to me, "write a program to do X." Say I am locked in a room with computer development tools and nothing else, not even internet access. A week later I come out with a program that does what is desired.

That program will probably violate a number of patents. How does that make any sense? It's not that I read patents and copy their methods; I simply independently come up with the same method, because it's the common-sense way to do something. IMO, patents should not be granted for common-sense methods. But they are. I'm certainly not going to go to the expense of hiring a lawyer and taking the patent holder to court over their invalid patent, so I end up unable to sell my software because people have a patent on anything and everything. ("Microsoft Patents Ones and Zeros" is one of my favorite Onion articles and not too far from the truth).

So basically, the role I see for patents, is as a mechanism that companies can exploit to screw innovators. That is, IMO, the complete opposite of their intended purpose. Partly it's because the USPTO will grant a patent on practically anything without checking whether it fits the rules.

Basically I think the whole patent system should go away, at least for software. It doesn't make sense in a field of extreme innovation that an ordinary guy like me should be able to "re-invent" patents so easily and be forced to give up doing anything novel for fear of being sued.

Nicholas:

I understand where you're coming from, and sympathize to a great degree.

I think NTP came out of the RIM case looking like assholes. Because they bought the patents at issue? No. Because they played complete hardball and took advantage of the timing of the court case, even as their patents were being shot like fish in a barrel? Yeah.

The fact that they owned patents for things they didn't invent? It's got a bit of a tacky feel to it, but patents are property, and if property can't be bought and sold, it's not really property. Ascribing to that belief as I do, I can't logically think too poorly of them simply for owning the patents on items they didn't invent. You're allowed, nay, encouraged, to think poorly of them, in any event, as you might not view patents the same way I do.

Luckily, I've got other reasons to dislike them, including the highway robbery they were able to inflict on RIM, a company in which I have no financial stake, but whose product & service I use daily.

What are the chances that they'd decide not to enforce whatever ruling against Vonage because of chilling effects?

I mean, the thing to do if you're going to use someone else's technology is hope to shoot the moon and have it be a deeply-entrenched must have by the time any lawsuits come around. Do you think the prosecutors in the RIM case could look at their Blackberries and really fully commit themselves to putting the company that made them out of business?

I thought patents were supposed to ENCOURAGE innovation, not stifle it?

I hate companies that buy patents, sit on them and just use them to sue people with a passion.

The "chilling effects" would apply to a company that, honestly, has a shitty reputation anyway, notwithstanding the many satisfied customers they can claim. Much of their bad reputation comes from the fact that they've played fast and loose on several financial issues, including their IPO, and they're not a widely-loved sympathetic icon like RIM. They've also got a founder with a history who's not squeaky clean.

Alternatives to Vonage exist, of course, though none with as large a marketing budget & footprint as Vonage has. The problem is that Verizon's likely to now head after the next biggest such company, so this really will remain interesting.

Everyone seems to forget that Vonage has a valid counter-play available to them, one that doesn't involve the long road to patent revocation: they can just pay licensing royalties to Verizon.

Vonage has been pretty arrogant so far, in a battle that they had long looked likely to lose, and Verizon has reacted by being arrogant right back at them: getting them enjoined from using the patented inventions for new customers, while still seeming reasonable by allowing use in the existing customer base for payment of royalties, past and future.

That's all a negotiating ploy, I think, and Verizon will be convinced to "allow" Vonage full future licensing, for a fee. So Vonage will raise its rates. And Verizon will possibly lose fewer customers to Vonage as a result.

The RIM case wasn't an issue on which prosecutors had to make a self-involved decision. It was a purely civil matter, not involving any public servants other than court personnel. However, NTP made clear that if it did have to shut down RIM, it was planning to graciously allow the company to continue providing services to the Federal & State governments. Wait - that wasn't gracious, that was shitty.