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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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Software Patents: Do as You Would be Done By

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I've written plenty about why software patents should be resisted where they don't exist, and abolished where they do. But if I wanted further ammunition for my arguments I couldn't hope for a better example of software patent madness than what is happening in the smartphone sector.

It's a classic patent thicket, as Mike Masnick's helpful diagram makes clear (and it's got a lot worse since that was put together.) Although one of the bigger tussles - between Nokia and Apple - has just been settled in Nokia's favour, there are plenty of others still dragging their unlovely legal bodies through the courts, not least those involving Google's Android system.

A few months ago, Google reluctantly decided it needs to bulk up its patent portfolio in order to be able to counter those attacks:

The tech world has recently seen an explosion in patent litigation, often involving low-quality software patents, which threatens to stifle innovation. Some of these lawsuits have been filed by people or companies that have never actually created anything; others are motivated by a desire to block competing products or profit from the success of a rival’s new technology. The patent system should reward those who create the most useful innovations for society, not those who stake bogus claims or file dubious lawsuits. It's for these reasons that Google has long argued in favor of real patent reform, which we believe will benefit users and the U.S. economy as a whole.

But as things stand today, one of a company’s best defenses against this kind of litigation is (ironically) to have a formidable patent portfolio, as this helps maintain your freedom to develop new products and services. Google is a relatively young company, and although we have a growing number of patents, many of our competitors have larger portfolios given their longer histories.

So after a lot of thought, we’ve decided to bid for Nortel’s patent portfolio in the company’s bankruptcy auction. Today, Nortel selected our bid as the “stalking-horse bid," which is the starting point against which others will bid prior to the auction. If successful, we hope this portfolio will not only create a disincentive for others to sue Google, but also help us, our partners and the open source community—which is integrally involved in projects like Android and Chrome—continue to innovate. In the absence of meaningful reform, we believe it's the best long-term solution for Google, our users and our partners.

Now, “stalking-horse bid” or not, it's by no means certain that Google will be successful in acquiring those patents, but there's already one company disturbed by the prospect:

Google should not be able to buy thousands of patents belonging to bankrupt Nortel Networks under current sale terms, Microsoft said on Monday, the deadline for bids in an closely watched auction.

Microsoft, which claims a "worldwide, perpetual, royalty-free license to all of Nortel's patents" following a 2006 deal, said in a filing with a Delaware bankruptcy court that existing agreements should be transferred to any new owner of the intellectual property, which spans many fields.

Microsoft believes all such agreements "must remain enforceable against the purchasers of the transferred patents," whether it ends up being Google or another company, it said in the filing.

Clearly, what Microsoft fears here is that Google might acquire the patents, and then threaten to cancel the licensing deal with Microsoft unless the latter halts its legal action against companies using Android as the basis of their products.

For Microsoft to complain is pretty rich, of course. Here it is, using patents to attack companies employing Android in an attempt to slow down the uptake of that rival to its own Windows Phone smartphone system. That's a clear abuse of the patent system to dissuade companies from signing up with a competitor (which, interestingly, it doesn't attack directly), rather than to protect real innovation (an aim that was thrown out of the patent system long ago.)

After all, those deeply innovative ideas that Microsoft is claiming that companies are infringing include “natural ways of interacting with devices by tabbing through various screens to find the information they need, surfing the Web more quickly, and interacting with documents and e-books”. Tabbed screens - yeah, right.

And yet when there is the prospect that Google might be able to threaten in exactly the same way, by pulling existing licences - not, admittedly, a very nice thing to do, but all's fair etc. etc. - Microsoft suddenly wants the government to intervene to protect it from this bullying.

I mean, let's be consistent here: if you want to abuse the patent system, expect to be on the receiving end of similar abuse. On the other hand, rather more laudably, why not stop abusing, in which case you can take the moral high ground when others start abusing the system to attack you?

Follow me @glynmoody on Twitter or identi.ca.

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