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.)
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 serveas casesin 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.
Critics nonetheless 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.
— 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.
Good news that the court in the Eolas case made such a sensible ruling. It's patent enforcement actions like this one that bring software patents into disrepute. While I'm not against the idea of patenting software, this particular patent litigation makes me think that maybe the ability to do so should be limited.
I agree with most of the content of Ashish's (Thinkernetter) posts, but I want to make a stand about the role of lawyers in the patent mess.
I do not think an entire class of professional is to blame for the problems we have. Lawyers provide an important function, and every lawyer I have ever known is an amazing individual.
The problems are systemic. These systemic problems have led to the excessive number of lawyers: it is a result of a system that is excessively governed by legal action.
There are deep problems there, and this is very off-topic. But I will posit that (1) the use of lawyers as proxies for the actual parties in cases involving individuals has some very bad effects, and (2) the concept of case law also has some very bad effects.
The use of lawyers are proxies to make one's case (i.e., not acting as one's own lawyer, as they ironically now say) has had the effect of pushing law out of the reach of the average person. It has made law too complex, so that one always needs a lawyer to appeal to the court for any kind of remedy, or to defend oneself against wrongful accusation. It gives power to those who have the deepest pockets and who therefore can afford the most lawyers.
The concept of "case law" is that courts "interpret" laws, and these interpretations become part of the statute, in effect. This is a deeply flawed concept. Courts should not be interpreting anything. The only ones who can interpret a law are those who wrote it. It is only they who can speak authoritatively to the intention of the law. A law is not a work of art to be interpreted: it is a prescription. It should not be "interpreted". It should be understood. The job of the courts should be to understand the law - not to interpret it. Interpretations add to a law. It should not be the job of the courts to be adding to law - i.e., legislating from the bench.
These two phenomena - the complexity of law, resulting from use use of lawyers for representation, and the practice of treating court decisions as "case law' - are responsible for our system which is excessively governed by legal action, and this has resulted in the preponderance of lawyers. The lawyers themselves are not to blame.
Joe - You are right that the mess is caused by bone-headed decisions. But unfortunately, with respect to business process patents and software patents, bone-headed decisions have become the norm. This is because the courts have validated these bad decisions, making the very low "bone-headed" criteria for what is patentable into a standard.
For example, the Amazon one-click patent has withstood legal challenges. But it should not have. I have read the text of the patent and can tell you that its design is obvious to any programmer.
Therefore, the USPTO is operating according to "bone-headed" criteria, and in the process churning out thousands of patents every year that are bone-headed.
I also believe that 99.99% of all software patents are inevitably "bone-headed". This is because of the nature of software. As one person put it, patenting software is like patenting the Greek Tragedy type of play, or patenting the "Romantic Comedy". Therefore, the goal of patents - encouraging innovation - would be better served to simply eliminate that category in its entirety.
But the core problem - reinforced by many comments here - is that the "bar" for what is "not obvious" (patentable) has come to be way too low. I believe that for something to be "not obvious" it should have required years of work, as well as substantial trial and error over a long period of time (years). There is no software patent that meets that criteria.
Fixing the "obviousness" criteria would have the effect of eliminating the class of patent trolls who sit around and think up patents, file those patents, and then sue people for violation.
But IANAL is right that there is no powerful advocate for true patent reform. The EFF and PUBPAT are pretty much it. That is because all large companies have patent portfolios, and they don't want those portfolios threatened, even if it would be for the greater good. This is why we should all support those organizations.
I don't think that comparison(with Drug Companies) is a fair one.
For one) The Medical Industry in America is a Highly Regulated one[With very high barriers to entry for competition as well as Guaranteed Profits thanks to Super-favorable regulation from Congress]
and Secondly)The Medical Drug Industry has been around for way longer than the Software Industry.And they have pencilled in ROI Models which take this into account.
Are you trying to tell me that all the drugs that these companies test in First stage trials every year,go onto be blockbusters?? No that is not the case.
They have a failure rate in place as well.Which is why most Stocks move like crazy on FDA Rejections/Approvals.
In contrast,the Internet remains very much the wild-west where its still possible for a new competitor to come charging out of the blue and blow the existing entreched players out of the water.
Your message is Highly accurate and totally to the point.
The EFF always does an amazing job of looking out for the little guy and this is why they are so good at what they do(including in this case).
If we want to promote Innovation and more competition (which will certainly help generate more Jobs in the long-run) then we need to ensure the little guys have to jump over as less hoops as they can to start and stay in business.
The Patents mess is just another one of the many hoops that most entrepreneurs have to jump through to stay in business and challenge the Big Corporations;who have (as you rightly put it-Brand Recall,Marketing& customer footprint,Deep Pockets as well as the definite ability to manipulate and influence Congress to make Laws only in their favor).
But then there is no money in looking out for the Little Guy is there? So why should Congress draft laws to look after them???[Sarcasm Off]
I don't believe much in more Laws and More regulation to address this issue.The biggest problem(and barrier to entrepreneurship today) is that we have way too many Laws and they need an army of Bueracrats and lawyers for their enforcement.
I was recently reading a number of articles how Freshly Minted Lawyers(Just finished Law) declaring Bankruptcy in the last two years[The Numbers are up very,very sharply].
Also,if you go through the Phone Directory of Washington DC,there are three time as many Lawyers as there are Plumbers& Electricians combined.
What does that tell you? We as a nation are massively Over-Lawyered.
So what are all those Lawyers supposed to do??? Go for one Frivolous suit after another in the hopes that they will one day hit a Home Run(with a Class action suit) and that will be the end of their massive Student Loan Debts!!!
Its really sad if it was'nt true.
And the remaining Lawyers (who are not practicing Law)?? They are out there making new and more complicated Laws& regulations(thereby generating more Jobs for their out of work brethren)...
It hardly matters if We Stifle Entrepreneurship and other Jobs in this process???
Check this mind-blowing article from John Stossel here for more on this perspective
Speaking about patents,Apple is back in the news.Apple's Ipad is off the shelves in China.The portents are not good,and this has the potential to turn nasty very,very quickly.
http://www.bbc.co.uk/news/world-asia-17143417
I for one,don't think this Lawsuit is frivolous/Without merit (after all the company Proview did own the Patents on the Trademark-Ipad.)
Why don't Apple consider changing the Name of the Ipad in China??? Maybe using a Chinese Translation would work?
After,all a significant part of the lawsuit just looks like Arrogance on the part of Apple-Ooh we are the Apple,We Are always right...
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