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07/31/00
Software and Internet Patents
by Jake Davenport, President of Webmaster, Inc.
One of the most controversial topics on the Internet today is related to the protection of intellectual property. Patent laws were recently expanded to include software and software-based systems, a dramatic departure from the way software has been traditionally treated over the past 50 or so years. The logic behind these changes, so the proponents say, is that now companies can protect their investments in research and development and pursue damages from other entities that "steal" their ideas. Unfortunately, patent laws are too broad and overarching to adequately manage the nuances of software development.
For example, British Telecomm recently announced that they owned the patent — filed in the U.S. — on hyperlinks. The technology world in effect laughed this off as beyond the realm of insane, but news articles as recent as a week ago indicate that BT is pursuing royalties from ISP's in the United States. How ISP's are the target of BT's money-grubbing tactics is still a mystery, but the courts are likely to uphold the patent-owner's claims.
Patents have traditionally had more to do with items in the physical world than within the abstract. The value of a patent lay in its ability to protect an inventor from unscrupulous competitors and to encourage innovation in a free marketplace. When the light bulb was patented, it allowed Edison's company to recoup the dollars spent on research, development, and production. Furthermore, it was obvious that the light bulb was "new" and unprecedented. Anyone wishing to devise alternative methodologies was free to do so. Anyone wishing to extend the concept further was also free to do so, and was in fact able to apply for a patent on the resulting innovation. These patents applied to objects and items in the "real" world and were obvious in their newness and application.
When it became acceptable to patent systems of thought and processes, the levy was seriously weakened. For example, there is a patent on taking a laser pointer and playing with a cat - it's a cat entertainment "process" and it shocks the mind, quite frankly. Using the same logic, one could conceivably attempt to patent the process of applying a pen to paper and generating by motion of the arm symbols that provide meaning and context to third-party observers. But patenting the act of writing would be rather off the wall! Nevertheless, while the logic is applicable to both scenarios the application of patent law to one and not the other is entirely arbitrary.
It is within this context that we find ourselves staring down the barrel of British Telecom's hyperlink patent, the whole world wondering just how much it will cost in legal fees to defend or destroy the very foundation of the Internet. The problem is not the patent - the problem is the precedent. If the patent logic is applied in this case as evenly as it was applied in the case of the cat entertainment "process", then British Telecom is indeed entitled to ask for royalties whenever a hyperlink is used. If the same logic is applied here as it was applied in Amazon.com's patent requests and court cases, then everyone who uses hyperlinks as a means of structural navigation will find themselves open to lawsuits and financial recrimination. Of course, BT has the option of enforcing or not enforcing their patent(s), which implies that the "victims" of enforcement will be selected by BT for their positions within the marketplace. It would be interesting, for example, to see what would happen if BT sued Amazon.com for using hyperlinks on their website without paying royalties.
If patents are being given not to the underlying code but to the very nature of what the code does, then we will soon see a dramatic reduction in the marketplace. Imagine for a moment that Microsoft obtained a patent on word processing technology: say bye-bye to WordPerfect and the scores of other lesser-known competitors. In fact, say bye-bye to anything that uses a bold function in conjunction with segments of text.
You can copyright the code - the basic underlying structure of programming language your company used to achieve the desired effect - and you can prevent people from stealing it, misusing it, even deconstructing it. But you cannot reasonably own the process - that is, you cannot declare that you have written an application which performs a function unique to itself without any precedents. The very burden of proof is impossible to take on considering the fact that millions of programmers write trillions of lines of code each day.
Patent laws must be changed if small business and independent developers have any hope of impacting the growth of technology in the future. Our courts cannot afford the massive legal costs of defending or challenging frivolous patents. The very structures of the Internet and computing are threatened by this so-called protection of intellectual property.
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