Updated 2/10/12, 9:45 a.m. Imagine this story: University scientists, working diligently in their lab, invent something world-changing. Several big corporations steal the invention for themselves, making billions of dollars in profits. The scientists receive nothing.
You don't have to be a professional folklorist or ethicist to conclude that the scientists are the good guys and the corporations are the bad guys.
A technology pundit hearing this story, however, might come to the opposite conclusion. (Technology pundits come from Bizarro Technology Punditry World, where up is down, black is white, and Google+ is the best thing ever.)
That appears to be what happened on Wednesday, when one of Wired's top stories ran with the uncharitable headline, "Patent Troll Claims Ownership of Interactive Web -- and Might Win."
In the 1990s, three University of California scientists allegedly developed and patented features that have become integral parts of what we today know as the "Interactive Web" -- including online video, image rotation, and search bar autocomplete. Eolas Technologies (a company owned by one of the scientists) and the University of California are suing several major companies -- including Internet heavies like Adobe, Amazon, GoDaddy, Google, and Yahoo, and retailers like Staples and JC Penney -- that allegedly employ these patented features.
One of the patents was litigated in 1999 when Eolas and the University of California sued Microsoft for infringement. In 2005, the United States Patent and Trademark Office upheld the patent's validity. Microsoft eventually settled with the plaintiffs out of court.
The defendants in the present case argue that Eolas's patents were based upon already developed technology. Yesterday evening, the jury returned a verdict in favor of the defendants, ruling that the University of California scientists were not the original inventors. Before the jury ruled, however, the truth seemed irrelevant to the tech pundits -- ever fond of villainizing anyone who tries to assert intellectual property rights on the Internet as a "troll" (Internet Evolution editors and contributors, sadly, often serve as cases in point). The Wired story accuses Eolas of "patent trolling," painting its owner as a litigiously greedy monster "threaten[ing] the future of web innovation."
The criticism of allowing software patents -- once one gets past the anti-property boo-hooing -- typically boils down to one basic complaint: that there is something intrinsically wrong with the idea of allowing one to patent a process (as opposed to a tangible device).
But, contrary to popular misconception, patents can generally be obtained for devices and processes, and process patents are nothing new. The first US patent protected a process for making potash. Other famous historical patented processes include the Bessemer Process (for making alloyed steel), Pasteurization, and Morse Code.
mewl argue that patents "stifle innovation." This is like arguing that requiring people to pay money at a restaurant "stifles feeding," or that making it illegal to steal a UPS truck to start a delivery service "stifles entrepreneurship." (Doubtlessly, when Thomas Edison denied Nikola Tesla the $50,000 he had promised him in exchange for spending several sleep-deprived months improving Edison's DC generators, Edison likely felt that honoring the contract would have "stifled" his company's innovation.)
Those who wish to use and further innovate upon patents can get permission to do so (hardly cost-prohibitive for the defendants here). It's no different than, say, Warner Bros. having to get J. K. Rowling's permission to make movies of (and billions of dollars from) the Harry Potter books.
To be clear, I am not commenting on the actual results of the case. Not having seen all of the evidence or been in the courtroom, I do not attempt to second-guess the jury; they may well have made the legally correct decision.
I also do not here pretend that the patent system is perfect. Furthermore, I understand the difference between recognizing intellectual property rights (good) and enacting inappropriately far-reaching methods of enforcement that would threaten the rights of the innocent, such as SOPA and PIPA (bad).
What I do not understand is -- had the jury determined Eolas's patents valid -- why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent or have legal permission to use, but somehow immoral for the actual creators of the technology to likewise profit.
Maybe a technology pundit can explain.
— Joe Stanganelli is a writer, attorney, and communications consultant. He is also principal and founding attorney of Beacon Hill Law in Boston. Follow him on Twitter at @JoeStanganelli.