Software patent infringements are increasingly becoming the subject of litigation. For those not in the programming field, software patents are issued for what I would call programming techniques or methods. An analogy would be if a carpenter patented “the use of nails to secure beams to the wall”, “the use of a roof to keep rain from falling on the interior of a house”, or “the use of cement to create a sidewalk”. A way of solving a problem is patented, that in most cases is something already widely in use by programmers. Even if not widely in use, can a method of doing something be the basis of a monpoly grant?
It also appears to me, a programmer, that in many of these cases the patent office and the judges (let alone the juries who hear these cases) don’t have much of a grasp of what the technical issues are nor of the “prior art”, a pre-condition of a patentable invention. It has become somewhat of a cynical hobby among programmer friends of mine to find ever more ludicrous examples of patents covering methods that we have all used for years in creating computer programs.Kodak has recently settled a patent lawsuit with Sun Microsystems over a technique used within “the Java programming language”, a computer software technology. Kodak clims that Sun had infringed on their patent on for the way that one application asks another application for help. The articles about this lawsuit stated that Microsoft’s new “.NET platform” could fall under the same patent. (Mises.org uses this technology for its web site).
Kodak initially asked for $1 billion, half of Sun’s profits over the period of the alleged infringement. They eventually settled for $92 billion dollars. This is one of several high-profile software patents that has recently been charged or settled. Another, by Eolas, claims to have a patent that would cover HTML, a data format that is used for the vast majority of web pages on all web sites, and another suit claims that JPEG, one of the most popular formats for graphic images on web sites has been patented. One of the all-time silliest was Amazon.com’s patent on their “one-click” method of ordering. This web site feature enabled customers to add a book to their shopping cart and purchase it in a single click. Barnes and Noble was prohibited by a court order from using this technique on their web site, so they added a pointless second click to their accelerated ordering process.
I believe that the very concept of software patents is fundamentally unsound. It represents an illegitimate grant of monopoly privilege, and is creating a huge cost not only for the technology industry, but for any industry that uses technology. (See Rothbard on patents). The success of any one of these lawsuits could subject the users of software to legal liability, or additional charges. Perhaps every web page view will require the payment of a licensing fee to patent holders.
A vast proliferation of rent-seeking has been spawned by software patent lawsuits, as companies patent an increasing number of popular and widespread programming techniques and then seek to use the courts to obtain damages against companies that have used them. This has spawned a counter-movement of technology companies attempting to either lock up their own patents or pour more energy and money into attempts to insulate themselves from legal claims.
More on Kodak:
- an Information Week cover story that gives a good overview of the issue, The Cost of Ideas
- Kodak, Sun Settle Java Lawsuit
- Kodak’s Java Case Underscores Patent System Woes
- Jury Rules for Kodak in Java Patent Dispute
- It’s Too Soon for Kodak to Smile and Say ‘Cheese’
The Eolas suit on HTML:
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A photography company trying to make money through software patents? Hahahaha! That’s a good one. Next you’ll probably try to tell me that General Electric wants to make money by offering credit cards. Too much.
Boeing, Kodak, GE, GM, Ford, Westinghouse, …
“The Sea of Faith [in Yankee ingenuity]
Was once, too, at the full, and round earth’s shore
Lay like the folds of a bright girdle furl’d.
But now I only hear
Its melancholy, long, withdrawing roar,
Retreating, to the breath
Of the night-wind, down the vast edges drear
And naked shingles of the world.”
Apologies to Matt Arnold.
Wow! That’s a really novel negotiation gambit.
Patents have really gotten out of control. Not just in software either. A U.S. university patented the use of a mathematical concept for pricing financial instruments, even though it’s well known that a number of other people thought to do so well before the university’s researchers. The math originated in Russia to compensate for their nuclear weapons scientists not being able to match the computing power at the disposal of their U.S. counterparts. The Russians found superior algorithms which they could evaluate by hand; in a group, passing papers of intermediate results to each other as they specialized in portions of the calculations. The math was published in the popular book Numerical Recipes in C well before anyone thought to apply the technique to pricing financial assets, like derivatives. A patent on the idea of using this existing math on a particular problem was issued in both the U.S and Canada.
A friend of mine wants to patent the idea of patenting obvious ideas. He figures there’s a gold mine’s worth of violators out there already.
It is actually almost impossible to write any code without violating some patent, showing how ridiculous the entire scheme is. And to think, they say patents “stimulate progress”.
I’m really glad Austrian economists and libetarians are waking up the fact that ideas are not scarce property and that patent litigation is not a part of the free market.
Even if not widely in use, can a method of doing something be the basis of a monpoly grant?
Yes, they’re called “process grants.” They have a long history in chemical patents.
A vast proliferation of rent-seeking has been spawned by software patent lawsuits, as companies patent an increasing number of popular and widespread programming techniques and then seek to use the courts to obtain damages against companies that have used them.
Generally, you’re not allowed to patent something which is in public use, and the requirements of public use are very low. If a lot of program techniques are being patented, programmers need to tell courts that these techniques are in public use and cannot be patented.
- Josh
- Josh
As for Austrians “waking up” to this problem, Rothbard’s critique that I link to was written in the 1960s.
My friend who works at Canadian telecom company Nortel tells me that they have a patent on filling in web forms. By posting, we are infringing on their patent.
Paul D.,
As Mr. Blumen said, the Austrians realized this more than 40 years ago. It’s there in the very first chapter of Man, Economy, and State with Power and Market. Rothbard, Murray. Rothbard covers the topic in more detail in Chapter 10—Monopoly and Competition. Quoting from Rothbard,
The topic has also been addressed in Against Intellectual Property. Kinsella, Stephan.
Thanks for the links to Rothbard’s book, I hadn’t read that chapter. I was thinking more about all the libertarians and Austrian-leaning thinkers that still seem to think patents and copyrights are defensible from the point of view of the free market.
For some of these people, the possibility that patents might encourage innovation (I argue the opposite) trumps the natural free rights of man, just as for socialists, the theoretical possibility of achieving a society without rich and poor trumps the individual’s right to own property.
I have seen and enjoyed Stephen Kinsella’s comments at Lewrockwell.com, another indication that libertarians are waking up to the restrictions on person freedom that patents and copyrights place.
This is a little off topic, but what role do corporations play in the Austrian school? That is, are they considered legitimate as protected institutions above and beyond the individual contibutors? I’ve had some trouble grappling with where Austrians stand in this matter.
Individuals who invest in corporations are granted protection from liability to varying extents by the state. The concept of limited liability is not at all incompatible with Austrianism/libertarianism (I don’t think) but it is when the state decides how your liability will be limited and who is eligible to receive such protection.
A free market alternative would be a business organization operating under a set of standards that are known to the public and agreed to by anyone making a transaction with them. If their standards of incorporation state that they can back out of any contract that they ever make, they will be avoided by other market participants. If on the other hand a business adopts a widely-known standard that provides for recourse amicable to both parties and does not claim for itself any unreasonable prerogatives, it will function as a “corporation” without having to seek the state’s protection at all.
Back around the 1600s, wasn’t the meaning of the English word “patent” the same as “monopoly”?
A few words about the history and practise of receiving and enforcing patents, as I understand them based on a little experience and a little reading:
If you have the money (about USD10,000) to pay experienced patent agents to draft and apply for your patent (called “prosecuting” the patent), it is pretty easy to get all kinds of things patented. The patent office people who are approving the patents don’t really have the time or the specific expertise to truly determine the patent’s originality, so they set the bar pretty low.
Because of the cost of enforcement through lawsuits, patents function almost totally as a means for large companies to intimidate small/medium sized companies and individuals. Large companies bulk up their patent portfolios with literally hundreds of patents every year, the vast majority which probably have very little to do with an actual new invention. Based on the relative size of each other’s portfolios (and not on any evaluation of their relative merit), the sign “cross-licensing” agreements with each other (if I recall the terminology correctly), which basically mean they will not sue each other for patent infringement.
A large company will try to find a small company who is infringing one of its patents, try to win a judgement against that company (using its superior legal firepower) and then use that judgement as a stick to go around beating royalties out of larger companies, many of who probably could have successfully defended themselves had they been sued directly.
The litigation was described to me as a joke by my colleagues who had to testify – the jurors know nothing of the technology, and all the usual gamut of lawyer’s tricks are used to manipulate them. One of my favorites is the “damned foreigners card” (so to speak) which was used by an American company to win a judgement against a foreign company which had taken out a US patent.
There is no chance whatsoever that a smart person inventing in their garage will ever, ever get a patent and then get rich selling the invention to a Big Company. You will notice that all successful inventors also had large manufacturing resources at their disposal to make and sell their technology on their own, and also large legal resources to defend their patent. Alexander Bell, for example, had extremely deep pocketed backers, and he didn’t merely license telephone technology but set up a company to make and sell them, and operate the exchanges as well.
Tesla, it seems, never had the backing or the industrial power to effectively enforce his patents, so he is little remembered compared to the industrial giants who actually made and sold “his” inventions.
Any and all patents *AND* any and all copyrights are necessarily always an agressive declaration of war on humanity on the part of the claimant.
Ideas are immaterial and non-scarce. They cannot be circumscribed, physically dileneated, or controlled by their creators. They cannot be owned by even an originator who keeps his idea a secret to himself. As such ideas are clearly *not* property. Whether ideas are subjectively regarded as pollution or subjectively regarded as beneficial “external economies” is entirely dependent upon individual subjective valuation.
Only ideas which are “imprinted” upon definite material physical forms can be and are owned — but only by physical material possession of the material physical forms upon which ideas are “imprinted”.
Thus, there is no moral, natural, just, legal, etc. recource to blatant plagiarism, copying, duplication etc. Accredidation of ideas, if one wishes to pursue it, is purely established in the field of marketing.
Back around the 1600s, wasn’t the meaning of the English word “patent” the same as “monopoly”?
No. The word patent comes from Latin and means “open”. When the Crown granted a monopoly to someone, the Crown would issue the monopoly’s recipient a Letter Patent, that is, an open letter from the Crown to anyone and everyone that the Crown has granted the monopoly. As time wore on, and as patents moved from the Crown to the Parliament, the “letter” dropped and they were simply referred to as “patents”. However, on occasion, you will see “patent” used in the sense of “open” in a regular writing, especially as an adverb, i.e. “This is statement is patently false.”
There is no chance whatsoever that a smart person inventing in their garage will ever, ever get a patent and then get rich selling the invention to a Big Company.
If you mean a brand new pharmaceutical drug, no. But patents still do issue to garage inventors. Oddly enough, as a kid, there was a kids’ show on Saturday morning at the crack of dawn called “Dr. Fad”. The guy who created wallwalkers hosted a game show of sorts where kids had to show cleverness and ingenuity, one portion of which was an invention they themselves came up with. One of the kids brought on an ingenious device that would let you fasten a bracelet onto your wrist using one hand while the device would hold the bracelet in place. A few years later, I saw it in the stores with a patent on it. So, it’s not entirely impossible, but no, it won’t be the next cancer-fighting drug.
- Josh
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