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Thread: Internet Standards & Competition

Author Image Gerry Patterson. The world's most humble blogger
Taking dinosaurs off this island is the worst idea in the long sad history of bad ideas -- Dr. Ian Malcolm [Jurassic Park: Lost World]

Patent Insanity

Chronogical Blog Entries:

Date: Wed, 19 Aug 2009 18:31:17 +1000

US Patent laws and DRM laws in general and software patents in particular are out of control. Your humble blogger is gob-smacked to hear the recent news item from the land of the free and the home of the brave, that now threatens to set the blogosphere aflame ... News of a recent finding against Microsoft Corp. This decision was handed down in the US District Court for the Eastern District of Texas. It forbids Microsoft from selling MS Office Applications that include support for custom XML, including OOXML (DOCX) ... Microsoft are now warning of "massive disruptions" unless the ruling is set aside.

However dear reader, despite the alarm and consternation on the Internet about all those dire consequences that Microsoft and their friends warn us about, you need not lose too much sleep worrying about all that "irreparable harm" (to quote some alarmist blogs). Because, as it happens, "poor little" Microsoft are big enough and ugly enough to fend for themselves. In fact, they probably have more lawyers working on software patents then the remainder of the free world combined. This latest request from Microsoft's legal team, that the ruling be set aside, is probably one of many arguments that Microsoft will trot out over the next few weeks as they bring their considerable legal resources to bear on this little problem.

And with their considerable legal muscle, Microsoft may eventually succeed in their appeal against the decision.

Although, in your blogger's humble opinion the consequences arising from the injunction to stop selling MS Word would not be all that dire. In fact, any judgement that restrained Microsoft could be of considerable benefit to the software market, and could even restore some balance to the global software economy ... And encourage computer users to explore alternatives to Microsoft. This ruling in particular could even persuade Microsoft to consider the advantages of using an open standard like ODF. Or even better it might persuade Microsoft to use their influence and call for the abolition of software patents ...

If Microsoft's current plea to set this ruling aside should be seriously considered by the court ... Then surely one must ask why don't we just set aside all rulings regarding software patents?

Because it is patently clear, dear reader, that post-modern patents law, particularly in regard to software patents (which in your blogger's humble opinion is an oxymoron) have not and never will encourage innovation or competition. In the early days of patents, it was made explicit that ideas could not be patented. Patents were meant to be used for inventions and/or specific applications, not ideas or concepts. In the latter half of the twentieth century wealthy and powerful corporations achieved the holy grail of being able to patent broad and generic concepts. It was a contrivance that had been sought for many years. And once the precedent was set organisations all around the world set about fencing off large paddocks of intellectual property (another oxymoron).

Microsoft probably will survive this litigation because of the strength and depth of their legal department. A smaller company would not be able to defend a software patent. Although a smaller company would not be as attractive a target as Microsoft with all those big fat bags of money! So even though a small company may not be able to defend its patents, it is easier for them to attack ... This is part of the irresistible momentum of software patents which often leads to take-overs.

As long as the regime of patent insanity prevails in the US, the practice of using patent litigation to shake down wealthy corporations will continue to be seen as easier then rolling up one's sleeves and writing some better code.

But there is still time to undo the significant harm that software patents have done to the software industry in particular and industry in general. And in the post-recession phase, that we now find ourselves in, it is more important then ever to have genuine competition innovation and industry, especially in the software sector. And in times such as these there is no chance of a litigation led recovery. In fact there was little chance of litigation led recovery for anyone (except lawyers). Allowing the patenting of algorithms and software is stupid and counter-productive. It inhibits innovation. It is legally and philosophically incorrect. Software could have and still can be adequately defended with copyright law. The extension of Patent law to cover software may have been a significant bonus for lawyers but it has discouraged research and development in software.

If corporations weren't spending such ludicrous amounts on legal fees, they might have more money to spend on research and development ... And writing software that actually works!

And after all, dear reader, that's what we all want --- isn't it?

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