Have you ever thought about patenting a pop up note, an online poll, a leaderboard in an online game, or a system where you open apps by clicking icons? I have some bad news for you – it’s impossible. Not because the claim is stupid, it’s just that all of those things are already patented (take a look here, here, here, or here).
And it’s all fun and factoids, until one day you find yourself in the role of a software start-up, looking down the long black tunnel of software patenting, leading from Happy Town to Reality Check Station in Breakdown City.
Debates about the software patenting system come and go, sometimes ramping up in a brief controversy, when two giants battle it out in public, throwing patents in each other’s faces. Films are being made (you really have to check this one out), articles are being written, and the internet public learned to treat the software patent debate like something constant, similar to the internet browser race, or regular hardware releases. Seemingly, nothing changes.
Unfortunately, patents have one property no one seems to take notice of: they multiply. In fact, they do so with fervor that could shame lemmings, as you can see from this handy chart.
If you develop an application and want it to be fully legal, I have to disappoint you. You have no chance to come up with anything, that won’t be in breach of at least one patent, as they now exclude you from use of most basic techniques. Most likely, you’ve already broken a dozen patents just by thinking about your app. Every Tuesday, the US Patent Office publishes some 3,000 new patents, many overbroad, generic, or just plain ridiculous. Piles of them created a legal maze, impossible to navigate even for companies employing armies of cloned, genetically engineered super-lawyers. Just take a look at the paper-storm blowing in the face of Google’s Android.
The life of a start-up software developer is no longer a blind run through the minefield, because in a blind run, you at least have a chance.
Patenting the obvious
The problem is, most of the awarded software patents are trivial. For example, Amazon somehow managed to snatch a patent for online shopping checkout, that practically every online store in the world is in breach of. A small company owns a patent for creating a single file from multiple source files – both WinZIP and WinRAR actively breach this one. There is even a patent for automatic e-mail answers, its holder sued AOL, Amazon and Yahoo and many others.
The big players in the software market bypass most of this by cross-licensing their patents. That’s the only way they can operate – for example Microsoft had to “borrow” patents for many parts of Windows UI or code. But cross-patenting creates even more problems, as companies are very creative about various strings they attach to their patent packages. Microsoft’s patent agreements legally prevent other companies from using any form of Linux kernel unless they pay Microsoft for what it didn’t develop, and what is effectively an open source software.
Let me give you a stark example, that something is wrong with the current patent system: Microsoft is a patent giant of IT world, and holds 17258 valid patents, even though it didn’t develop a single important software innovation over the course of all its history – just check this very interesting list.
It wasn’t always like that. Many years ago, in the pioneer days of IT, you couldn’t patent an algorithm. Since then, companies discovered they can push the patents through if they simply substitute the word “algorithm” with “system and method”. Or if they patent a computer running an algorithm – a sneaky way to repackage a trivial piece of code as a physical invention. They have also learned to file for patents in places, where federal judge is well known to push through just about any claim. Step by step, the boundaries for “broken” patents are eroding.
There can be only one
Probably the best analogy for runaway software patents is the music creation. A computer program and a musical composition share many similarities. They are all reflections of various elemental, mathematical laws, they are all created from building blocks, that can be put into certain patterns and combinations. If we can patent a pop-up note, or an inbox-checking algorithm, why wouldn’t we patent crescendos, tremolos, or certain note combinations? If we can patent a “system and method” for building a leaderboard, why wouldn’t we patent a “system and method” for creating a rock piece?
Just imagine a world, where Elvis couldn’t play due to Rock and Roll patent held by a guy called, Jackie Brenston. Where Eric Clapton was sued into nonexistence by Lonnie Mack Heritage Foundation. And where Iron Maiden didn’t exist, because Black Sabbath wouldn’t agree to cross-patent heavy metal.
In the world of software patents, there can be only one. But often the most successful iteration of the idea is not the one that came first. I’ve already written about it in this post, but there were tons of failed social networks before Facebook. The problem is, in a couple of years debuting Zuckerberg style might no longer be an option, thanks to continued overgrow of patents.
A run through the minefield
But let’s get back to being a technology start-up. It’s clear that whatever you do, you will breach someone’s intellectual property. So ideally, before you even start to work, you should file some over-broad patents, to have the patent ammo for all the paper-flinging wars you will have to endure along the way. Even then, be prepared to fight waves after waves of patent trolls. You can’t cross-patent with them, or patent-threat them, as they never create their own software. You can’t reach a reasonable settlement, as they ask for millions of dollars in compensation. And some of them are really vicious, like certain Texas based company, that recently revealed an old patent for geo-tagging and sued 397 different companies, including Google and Microsoft.
Even if you grow large enough to handle patent trolls, a bigger fish in the pond might want to have a go at you – just like Unisys did to several companies using TIFF an GIF formats, because they incorporated the compression method patented by Unisys. Or just like Yahoo did to Xfire for sending people messages, when their friend joins an online game, even though most MMO games do exactly the same thing, without paying a dime to Yahoo.
So how exactly various start-ups deal with the situation? They don’t. Because the only way they can carry on, is by ignoring the existing patent law. Shockingly, that’s also what industry experts seem to endorse. I’m trying to think of another business, where breaking the law is a necessary part of the business model. And apart from the long list of shady activities that can get you jailed, nothing comes to mind. Except for writing software.
Of course, you’re much better off if you simply develop your software abroad, in a more liberal environment. But this will only delay your problems until you get global. Because – let’s face it – the US user base is of key importance to most start-ups.
The moral of the story is: after years of handing overbroad and obvious patents, whatever you may think of is already patented. And whatever you do is certainly illegal. And the only thing you can hope for is that no one will notice (or care about) your little start-up application. Or that patent trolls will somehow die from their own weapon – Haliburton made the first step trying to patent the patent trolling.
I guess you could help the good fight by patenting the idea of patenting the obvious. Be quick about it, though. My submission is already well on its way to Texas.