[GUFSC] Will Patents Kill IT Innovation?

[Rafael R Obelheiro]

[http://www.newsfactor.com/perl/story/21270.html]

Will Patents Kill IT Innovation?

By Joe "Zonker" Brockmeier
NewsFactor Network
April 15, 2003

Software and business processes were not even patentable until 1980,
when the U.S. Supreme Court broadened the scope of what qualified to
"anything under the sun that is made by man." There is plenty of
evidence to suggest that the court's generous interpretation has been
taken to heart -- someone, somewhere seems to be seeking a patent for
everything to which the human imagination has given form.

Many in the tech industry are critical of the United States Patent and
Trademark Office (USPTO) and its policies. It is certainly not hard to
argue that some patents should never have been approved, and patent
examiners are not even expected to have the expertise necessary to
judge the worthiness of high-tech inventions. The question is whether
patents are an impediment to the industry, a necessary evil or just a
high-visibility nuisance.


Death to Innovation?

While the patent process certainly concerns many companies --
particularly smaller companies without a sizeable patent portfolio --
there is little evidence to show that it has stifled attempts to
innovate and create new products industry-wide. If anything, it only
serves to hinder companies after they have created a new or
interesting product.

However, Bruce Perens, an open-source consultant and advocate, says
the patent system could become a serious problem for the IT field.
"Almost all advancements in the technologies are incremental," he told
NewsFactor. "One researcher is building upon the work of others. So,
in such a young field as computer science, patents do tremendous harm
by blocking the major mechanism of innovation -- building on the ideas
of others. We're also seeing this problem in pharmaceuticals and
electronics."

When a company or project is faced with a patent infringement suit,
said Perens, the cost of litigation can make it prohibitive to fight
back. "Defending a patent case in court is so expensive that even
large companies will often pay off the patent holder rather than go to
the expense of winning the case," he noted.

Combining a patent with an industry standard guarantees real trouble,
he added -- especially for open-source and free software. "Standards
are supposed to be a way that everybody in an industry agrees to
interoperate. If we allow royalty-bearing patents into those
standards, free software won't be able to implement them. We won't be
able to interoperate. We don't charge royalties on our own software,
and thus don't collect the funds to pass on to patent holders."


Patents as Revenue

Not everyone frames the situation in such bleak terms, though. The
free and open-source communities will be able to defend themselves,
according to Jerry Rosenthal, vice president of intellectual property
and licensing at IBM.

"There's all these people involved in writing code for Linux -- this
enormous community that will be looking for prior art to invalidate or
for simple ways to avoid patents," he told NewsFactor. "They're not
suing that one company; they will have to deal with the entire
community that supports Linux."

But there is at least one serious patent concern for IT companies,
according to Chuck Mulloy, Intel's corporate spokesperson for legal
affairs. "Where things begin to break down a little bit," he told
NewsFactor, is "where companies or individuals aquire patents [just to
cash in]. Typically they don't invent anything and just buy patents
and use them as revenue generators."


Sticky Subject: Software Patents

However, the largest area of contention over patents in the IT arena
is software development. "There are lots of problems with software
patents: most fundamentally, that they exist at all," says Perens.
"Besides that, they aren't implemented very well, especially in the
U.S. Many patents are filed on processes that have already been
invented by someone else or are so trivial that they shouldn't be
considered 'inventions' at all."

Rosenthal said he does not see a problem with software patents. "The
nice thing about software as opposed to hardware -- you can write code
around any problem you've got. Hardware, you build a box and to change
anything in that box you've got to retool that entire line. Very
expensive. Software -- not that expensive." IBM is a company that
knows something about patents. According to Rosenthal, as of January
13th, IBM held 22,357 patents.


Fixing the Patent Problem

The first step in solving any problem is to define it. That might be
difficult in the patent area, as experts do not agree on the nature of
the problem -- or, indeed, that it exists. Some in the tech industry
see few, if any, issues of concern with the current patent process.
Others believe the system is severely broken and needs major
revamping.

There is definitely some room for improvement, says Mulloy. "We'd like
some legislation for patent reform that says if you're going to assert
a patent, you should be using it ... to be able to enjoin the
production of products, seek fees or whatever."

One way to improve the patent situation is to push to make free
software "ubiquitous in the world economy," Perens said. That will
spur the push for legal reform.

"That gives us a better chance of getting better legal support for the
free-software paradigm," he pointed out. "People should be working to
get a copy of OpenOffice for Windows on every new PC, for example. And
as those users accept us, we need to keep pushing the 'free as in
freedom' message. If our users are never told how this great software
came about, they won't understand that we need the freedom to continue
making it -- and they won't help us with the patent issue."