Patents, originally designed for objects like bikes, lightbulbs and furniture, are ill-adjusted to software innovation
Based on recent events in the tech world, there’s no doubt that patents are increasingly posing complicated problems for some of Silicon Valley’s biggest players. Oracle and Google are battling it out in court over Android phone patents while Facebook just bought 650 AOL patents from Microsoft (right after Microsoft bought them from AOL) for $550 million. But the impact of these lawsuits, and the forthcoming patent wars, won’t just affect the tech giants.
The story of patents in the Valley isn’t simply a story about the flow of intellectual property from one company to another (or from AOL to Microsoft to Facebook !) — it’s also a story of how the arms race over strategically packaged patent portfolios is shaping the tech landscape for the future of innovation.
(Check out this crazy graphic illustrating the myriad lawsuits between technology’s biggest companies.)
For consumers ,“to tag” (photos) and “to refresh” (a feed or page) are part of the everyday lingo, yet behind the scenes, there are full blown battles over ownership of those processes (or ownership of that language) as they exist in code.
The truth is, patent law simply was not designed for the ever-changing, rapidly developing world of software. In fact, software parents are nearly five times more likely to be the subject of litigation as other patents, and since 1999, lawsuits surrounding software patents have more than tripled. Julie Samuels explains this by arguing that the current “patent system fails to recognize how people create and use technology. Software is fundamentally situated as a building-block technology. You write some code, and then I improve upon it — something the open source community has figured out.”
Regardless, owning patents has become pivotal to “legal” innovation, but what happens when big companies like Microsoft and Facebook, or Google and Motorolla, exchange said patents? Other, often smaller, players are locked out from the full ability to further develop or improve a process unless they can “dream up some blocking patents.” So who loses? John C. Dvorak asks: “The small shop with no staff of lawyers”, which is why startups that don’t pay attention to IP will be at competitive disadvantage in the future unless the system changes.
While patent lawsuits have become a price of doing business in America in recent years, and especially in the tech industry, we can argue that software patents aren’t necessary for successful businesses: Facebook and, yes, Google, never relied on software patents to grow their early businesses.
Will Twitter’s move to give control of patents back to employee inventors finally ring in a ceasefire?
Related articles
- Facebook Buys AOL Patents from Microsoft for $550 Million (online.wsj.com)
- Oracle v. Google Shows the Folly of U.S. Software Patent Law (wired.com)
- Is Twitter trying to end the rech patent wars? (cnn.com)
- Twitter’s Patently Absurd Patent Policy (forbes.com)
