Having mice in your kitchen sucks. They eat your apples. They spread disease. They freak out your girlfriend. She becomes unhappy and refuses to cook.
You face another lonely night eating ramen noodles.
So, because you are highly motivated by having a happy girlfriend and being fed a real dinner, in a moment of genius clarity, you design a better mouse trap.
You build a prototype.
Eureka! It works!
There is much happiness because now your kitchen is mouse free, your girlfriend is happy and you are no longer subsisting on noodles alone in the dark.
You think to yourself, society could really benefit from this better mouse trap.
The problem is you don't have the money to mass produce and market it. But if you show your design to manufacturers what's to prevent them from producing it themselves and cutting you out?
You decide to keep it secret. This is not good for society because we all need a better mouse trap.
Enter patent law.
Patent law is intended to protect the inventor and simultaneously provide a public good. You file a patent in which you describe your invention in detail along with exactly what's new and novel about it. This is good for society. It's a better mouse trap and now society at large knows how to make it.
In exchange for sharing your invention with the world, assuming the patent office agrees that it is not something obvious that anyone could have thought of, society grants you a temporary monopoly on your particular better mouse trap. No one else is allowed to produce the same mousetrap or use it without your say so. Usually you grant your permission for others to produce it in exchange for some payment in the form of license fees.
If someone goes ahead and makes your mouse trap exactly as you have described in the patent without your permission, you can sue them for huge damages. You can even file an injunction against them and prevent them from continuing to produce the mousetrap you designed. What's even better for you is that the full weight of patent law is behind you, the patent holder, so it's really difficult for even big companies to defend themselves against your claims.
A patent is a very powerful monopoly which is good because we need a better mouse trap and we want you to design one and be rewarded for your efforts.
But because it is such a powerful monopoly and monopolies are bad for competition and innovation, we want to make certain that you can only patent your mouse trap and not something else. This is relatively straight forward because your better mouse trap is a physical invention and the mechanism of the invention is clearly described in the patent application along with what makes it unique. We can all agree on what makes it novel and more importantly we can compare your mousetrap and somebody else's attempt at a better mousetrap and all agree whether or not the two are the same. Normal mouse traps snap. Yours, for instance, spins. Does their mousetrap spin in the same way? If not, then it's a different mouse trap and your patent doesn't apply. If it does, you have the power to ruin their day.
But we also want competition. We want, for the public good, some other inventor to look at your new mousetrap and think "That's a good idea, but I can do better". Even with your new better mouse trap we need better mouse traps because mice are damned smart and adaptable and continue to make for unhappy girlfriends. After all, you don't want to starve. Patents are supposed to foster innovation and invention.
Now with patent in hand and the full weight of patent law behind you, you can go to manufacturers with confidence and negotiate to get your better mouse trap produced without fear that they will cut you out.
It's such a powerful idea that it's ingrained in American mythology. Even today getting a patent is a mark of success, intelligence and status.
But there is a dark side to patents that we need to avoid.
We want to prevent someone from patenting in a way that has unintended consequences. For instance, we don't want someone to be able to patent the idea of a mousetrap. If a person could do that, they would have the power and right, based on current patent law, to go and demand money from anyone who produces mouse traps, even if those people have been producing mouse traps for years. Worse yet, because of the power of patent law, such an individual could even shut mouse trap manufactures down.
Imagine if someone could patent the idea of using a spring in a mousetrap. Or the concept of a spring in a trap. Suddenly, with such a patent in hand, someone could go out and start suing manufacturers of mouse traps, rat traps, cat traps, rhinocerous traps, you name it.
"method and process for releasing stored potential energy to effect intruding entity capture."
That doesn't seem right, now does it?
If I've been building something for years you should not be able to patent some part of it and then demand money from me or force me out of business.
Luckily for us, such a thing doesn't happen. Or does it?
Well, unfortunately for all of us this is exactly what is happening in the software industry right now and it's getting much worse.
No lie. No exaggeration.
How can that be?
Let's take our example above of a better mouse trap and change it.
Consider a virtual reality game where there's a kitchen, a freaked out girlfriend, some food that's not getting cooked and some mice.
So for the game you come up with a better mouse trap. You write some code. Save it in a text file and include it in the game. It lays out the way the mouse traps looks and works. It's identical in every way to your physical mouse trap. In the video game it rocks. It is as effective as your real mouse trap and your virtual girlfriend is just as happy as the real girlfriend you wish you had would be, if you weren't single spending all your time inventing virtual mouse traps.
You go to apply for a patent on your virtual mouse trap. Most people would think that if the physical mouse trap is patentable, and we all agree it is, then the virtual copy of that mouse trap should also be patentable.
Makes sense, right?
There is a serious problem with this that has far reaching consequences.
There is no mouse trap.
Nor is there a kitchen or freaked out virtual girlfriend.
There are only 1's and 0's in a computer simulation and what those 1's and 0's mean is entirely up to interpretation.
It's software after all.
I don't know if you know this but a computer, no matter how advanced or powerful, is just a set of switches that are either on or off.
You've heard about gigs, right? Gigs of memory? Gigs of disk space? Gigs of pirated music on your ipod?
A gig is short for gigabyte which is 1073741824 bytes. A byte has 8 bits. A bit is a switch. It can be on or off. On represents 1. Off represents 0.
All the magic that happens in a computer is reduced to these 1's and 0's. Billions and billions of switches. Even this article you are reading right now. Each point on your screen is represented by a bunch of bits.
So when I say there is no mouse in your virtual game I mean it literally. What you perceive as a mouse on the screen is just a series of dots represented by a series of 1's and 0's. The same goes for the virtual kitchen, the freaked out virtual girlfriend and your newly invented virtual mouse trap. What you think you see is all an illusion. It's just changing patterns of bits.
But you still want to file a patent to protect your better virtual mouse trap, because that's what you see. What do you patent? A virtual mouse trap? Of course not. There is no mouse trap. It's just 1's and 0's.
Have I lost you yet? We have what looks like a trap. We have what looks a mouse. But really it's all software and data, just changing patterns of 1's and 0's.
So faced with this conundrum, maybe you describe your invention in generic terms of "matching an entity pattern that you're interested in", i.e. virtual mouse, and then "triggering some interrupting action that prevents further copying of the entity pattern", i.e. springing the trap.
The sample code might look something like:
while we have not detected the pattern of an entity (i.e. mouse) in memory we're interested in
continue to look
otherwise interrupt the program to halt the entity (i.e spring the trap killing the virtual mouse).
You file to get a patent for your software invention, i.e. a software patent, and the patent office grants it to you because maybe it's a Friday and they have quota to make so they rubber stamp it.
What have you patented? What power have you been granted? How do you tell who is infringing on your newly minted intellectual property?
Clearly you could go after any video game makers that have representations of your virtual mouse trap. A jury would probably buy that. But, because it's software, how do we tell if some virtual mouse trap is the same as yours? Because it looks like the same on the screen? What if it's a black and white screen? What if there is no screen? What if the interface the user who's playing the games uses is for the blind and it's based on sound? How do we tell if it's the same mouse trap?
You look at the patent claims. There's a monitoring entity. Check. There's a pattern being looked for. Check. Hmm. Based on this it looks like you've patented every kind of virtual mousetrap that could possibly be created. A jury in East Texas might buy that.
Because there is no mouse trap. It's just software monitoring other software searching for a pattern.
Then you meet a lawfirm who sees the patent you have been granted. They buy it off of you and aggregate it with other patents they have.
And they go and sue all makers of anti-virus software out there because clearly your mouse trap algorithm sounds like what anti-virus vendors do, doesn't it? Anti-virus software does pattern searching for patterns it's interested in and halts offending programs. Clearly it's a virtual mouse trap.
But all you wanted to do was to patent a mouse trap in a video game and now this lawfirm you sold the patent to is going out and ruining the day of some anti-virus vendors.
Now it gets bad for the anti-virus makers. The lawfirm sues them because they are able to convince a court they have a right to sue. Clearly you would expect that if it goes to court the court will see that what was patented was intended to be a virtual mouse trap and the patent would be thrown out?
Unfortunately for the anti-virus vendor, they have to hire really expensive attorneys to defend themselves. As of 2004, the average cost just to get to the point where you are in front of a judge is over $1M. Yes, that's a 7 figure number.
Again, all you did was patent a virtual mouse trap.
Most patent litigation happens in East Texas. From what I have read, the population there is very property rights friendly and if the patent office granted you the patent then clearly you have something valid.
So even if the anti-virus vendors spend seven figures and go to court they might lose because what anti-virus vendors do sounds very similar to what a virtual mouse trap does. The risk is great because the damage awards in patent litigation are out of this world.
So the anti-virus vendors do what most people in this situation do. They settle. Even though they do not write virtual mouse traps the costs of litigation are so high and awards so great that it often doesn't make sense to try to fight.
And they pass the added costs onto consumers.
With a little imagination the patent troll could probably find a whole bunch of other kinds of companies to sue that produce a wide variety of software systems that all "infringe" on your mouse trap patent. The patent troll is happy because for little work he gets to retire rich without actually contributing anything to society.
This is not what patent law was intended to do. It was supposed to make it so inventors would have an incentive to invent. It was not meant as a way for people to make a living through lawsuits.
Now you may say that there have to be a class of software inventions that would be worthy of patent protection. But here's the rub. All software is 1's and 0's. With software there is no way to have an unambiguous and verifiable result. We can't all hold it in our hand and agree on exactly where the limits of the invention are. There is no way to, ahead of time, know whether or not a piece of code might be seen by some jury to infringe on some patent. (And then there's the whole thing of people patenting really obvious things they learned in school, but that's another, albeit related, story.)
Because software is just an idea. It doesn't actually exist.
Software is 1's and 0's and therefore always left up to interpretation. So it's more like the story in a book. What it means and where it's boundaries are are left up, in part, to the reader.
This is why software should never have been allowed to be patented in the first place. Because of the written prose nature of software, any software patent suffers from unintended consequences and will by definition always be over-broad and can be re-interpreted to match situations that the original inventor never envisioned.
What should protect software is the same as what protects books and other works. Copyright. I write it you can't copy it without my permission. If you want to write something similar go for it. It's good for society for us to compete and see which of us can do the better job.
Of course you are thinking it couldn't be that bad. Clearly a virtual mouse trap is a contrived example. But unfortunately the mouse trap patent above has more merit than many that are being litigated now.
Recently members of MoDevDC have been getting sued. One company, LodSys, claims to own a patent on in-app purchases from smart phones and their strategy is to go after small one and two man shops and sue them for a percentage of their revenue to establish precedent.
Here is the claims section of their patent as mentioned in this article http://www.applepatent.com/2011/06/lodsys-what-to-do-if-you-receive-lodsys.html. (Personally I do not agree with the recommended course of action. Small developers simply don't have the money.):
1. A system comprising:
units of a commodity that can be used by respective users in different locations,
a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity, and further configured to elicit, from a user, information about the user's perception of the commodity,
a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity,
a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location, and
a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.
The whole patent is here: http://www.google.com/patents/about?id=nA2AAAAAEBAJ&dq=7222078
The original intent of the invention was some kind of phone/fax machine that talked over dialup lines to some server back in 1988. LodSys somehow bought or otherwise obtained the patent and decided to start suing en-mass recently.
What are they saying this patent applies to? Buy Now and Upgrade buttons linked to iTunes or the Android Market.
Yes. Buy Now buttons. Just the buttons. Nothing else.
Quite the genius invention that needed to be disclosed for the benefit of society and could only be done through the protection of a patent because otherwise no one would ever have come up with the idea of a buy now button, eh?
So if you put a button in your software linked to a store they want a percentage of your revenue or they'll have the court of East Texas issue a summons for your sorry self to ruin your day. In other words, if they have their way they want to impose what amounts to a tax on all makers of software because everybody has buy now buttons and has had them in software since the early day of the internet. And, of course, it's completely obvious. I sell something so I want to put a price tag on it and a way for people to buy it. Genius invention, eh?
Some of the guys in danger of getting sued are just little guys writing cool apps on their own without a company around them. What are they going to do when they get sued for doing something so obvious and normal as a hey, click here to buy my app kind of link? All of their personal assets are at risk. How on earth could any reasonable person think that such a thing could be patentable? How on earth does anyone who gets hit by one of these baseless lawsuits defend themselves when patent law is so skewed in favor of the patent holder? Patents were supposed to protect the little guy against the big guys, not make it easy for non-practicing patent trolls to bully the little guys.
Here's the kind of letters LodSys are sending out:
The problem is we small developers don't have 7 figures to spend defending ourselves. Hell, we can't even afford the initial consultations with an attorney.
Those of us in the software industry always held that software was something that should never have been patentable because we saw this future coming. But in 1994 a judge ruled that software could be patented and the mess of unintended consequences began.
Why should anyone outside of the software industry care about this kind of patent abuse?
Think about it the next time you buy a phone, a car, a music player, or any other device that has any code in it. What percentage of your hard earned, hard fought precious money is going to pay off some non-practicing patent holder, a.k.a. Patent troll, who figured out he could abuse the patent system to sue for a percentage of revenue not so he could build anything but instead just to get rich by taking.
Think about it the next time you wonder why things are so expensive.
Think about it when your kids are looking to start small companies or their employers downsize because of litigation expenses.
Or more importantly, think about it when you do anything online. Even if you just have a small business or personal site doing something completely normal you are not immune:
Software patents expose even average citizens to unacceptably high risk of litigation. Yes, even you.
Patent law must change. If it does not our other American industries will go the way of our auto industry and our cost of living will go up as a result. If you are anti-taxes, you should be even more incensed by the tax you pay every day to people who abuse the patent system and offer you no benefit in return whatsoever.
It's unlikely given how long this mess has been going on that software patents will be done away with, despite that being the correct solution, but something has to change to avoid letting patent trolls have too much power. Small business and startups are what drives the economy forward. The ideas that will keep your children employed in the future are being developed by small entrepreneurs today and this patent situation is putting a dark cloud over that part of our economy. Many who would otherwise be willing to start businesses are shying away because the risks are becoming too great.
The Washington DC Mobile Developers group is having a panel discussion on July 20th about these issues. If you are local to the Metro DC area and are in the mobile software development space, you may want to attend.
Here's some additional reading for the interested:
Also, I've been following @FOSSpatents on twitter.
I decided to bite the bullet and try to write this article in response to this post on twitter:
It is crazy the flattening effect that twitter and facebook can have on the world.