Editore"s Note
Tilting at Windmills

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December 11, 2003
By: Kevin Drum

SOFTWARE PATENTS....The Washington Post has a good article today about the problems surrounding software patents. The hook for the story is a company called Acacia, which owns a patent that (allegedly) covers a technology used to stream audio and video over the internet, an area that is intensely complex. The "patent pools" for technologies like MPEG-2 and MPEG-4, for example, contain hundreds of separate patents.

Read the whole thing if you're interested, but here's the specific part that has long been one of my biggest pet peeves about software patents:

Acacia's patents lay dormant for 10 years, until the original company was bought out by some of its minority investors. Management is now making it one of many companies specializing in the business of generating money from patents, rather than using them to develop products directly.

I happen to think that patents on "fundamental" software technologies are way too easy to get in any case, but the real problem here is that of letting a broad patent sit dormant for a long time while other people use it, either knowingly or not. After there's a critical mass, and the users can't easily switch to something else, the patent holder sues. Unisys pulled this same trick over the underlying technology for the GIF image format.

It strikes me that patent law should resemble trademark law in this respect: if you don't defend your patent, you lose it. Companies that adopt technology need to have a reasonable way of knowing whether the technology is patented and what the patent holder's licensing terms are, and they need to know this before they invest heavily in the technology. Anything else is fundamentally unfair.

Frankly, I wouldn't mind seeing patent law almost completely scrapped in the software world. The majority of software patents aren't really innovative at all, they're just one way out of dozens of accomplishing something. Until we get the broad overhaul that we need, though, I'd like to see a rule that requires a company to act immediately if it knows (or reasonably should know) that its patent is being violated. If it doesn't, the patent should be void.

Kevin Drum 10:06 PM Permalink | Trackbacks

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