Anyone who has watched the astonishing stupidity of American intellectual property developments will not be surprised to hear that the latest concerns a patent case. If the defence fails, Web browsers may have to be modified to work with plug-ins in a new way, and websites that exploit plug-in programmes will have to be rewritten to match.
This will cost Web publishers — who have committed no crime — billions of dollars. The benefits to society will be close to zero.
Tim Berners-Lee, the Net’s inventor, has asked the United States Patent and Trademark Office (USPTO) to re-examine the patent it granted to Eolas Technologies because the World Wide Web Consortium’s (W3C) HTML+ represents ”prior art”.
In going to the USPTO, the W3C is trying to bypass the courts, because HTML+ was one of the technologies that Microsoft had already claimed predated the Eolas patent.
Of course, plug-in technologies — where a link in the Web browser invokes another programme — were used by Netscape before they were used by Microsoft, and they are used by many other companies.
If the judgement stands, Micro- soft’s bank balance will decline by $521-million, and Eolas will have a monopoly on the idea. It will be able to knock on lots more doors to demand licence fees.
Whatever the merits of this particular case, there is plenty of evidence that the USPTO is granting patents in an area it is not equipped to handle.
Experts warn that the granting of these software patents is likely to have a damaging effect on the software industry.
In theory you can fight stupid patents in the courts. However, as Intel’s Andy Grove points out, in the US the cost of intellectual property litigation rose from $5-million a year in 1982 to $4-billion in 1998.
With an average case costing about $500 000 a side, there’s no point in most software houses trying to fight them, even if they are in the right. Nor can programmers easily avoid infringing on software patents.
There is no simple or affordable way to find out what software patents have been applied for or granted.
This isn’t so bad for industry giants such as Microsoft and that most assiduous user of the patent office, IBM. Their logical response to patent stupidity has been to take out as many patents as they can and use them as bargaining counters.
But it is not promising for free software development. How do you pay expensive patent licence fees when you have little, if any, income? — Â