Wars on technology: the patent mess

It took the jury just three days to award a billion dollars. It opened a new can of worms in the intellectual property wars.

“What are the weapons? IP law. They have copyright, they have patents, and now they have a new weapon of choice — trade dress and design patents — thanks to Apple. And that is why this case is so appalling, because Apple has now opened up a new area for litigation and exclusion.”

Groklaw reports that Samsung Files Motion to Stay Judgment & Why This Case Matters. It is a matter of the big money in software, Microsoft and Apple and perhaps Oracle among others, going after Google’s Android software and FOSS in general.

“Remember too that Apple itself reaps benefits from Open Source software. It switched from its own software to OSX, which is BSD code. Why? Because it was better than what it had done itself. So it surely knows what FOSS can do. Now, it wants to make sure no one else can offer what it offers, even in such basic elements as rectangles with rounded corners and rows of brightly colored icons or ways to touch a tablet that are simply intuitive. Intuitive is just another word for obvious. “

This is just the latest big case in the idea that people could patent ideas and their expression. This came up in the matter of business process patents and other software expressions about 20 years ago. The push has been to patent programming interfaces and now to the fine details of what things look like in a video representation. This broad coverage of intellectual expression as a patent coupled with poor definition, unclear patent claims, large damage risk, and seeming obliviousness to prior art or obviousness is why businesses have to obtain a large patent portfolio such as buying them from a failed company such as Novel or Kodak or building their own or joining in on a consortium. That way they can use their patents to fend off infringement claims in a Mutually Assured Destruction – MAD – lawfare standoff.

The problem with this is that it is the independent or small business entrepreneur who gets cut off at the knees. They can’t afford an extensive patent portfolio and everything they develop is at risk for the company being sued out of business for violating some patent or other. They have to fly ‘under the radar’ until they can either sell out to a big company or can build sufficient resources to fend off attacks before they become a target.

The patent system is being misused in ways that are opposite to its intended purpose. The reason for the state to grant a short term monopoly via patent is to foster innovation and business growth. It used to be that you had to deliver a working model to the USPTO to get a patent. No more. People are now getting patents for processes they can not even demonstrate in use and for minor details in presentation or variations in method. That feeds trolls and creates a feudal system complete with castles and expensive fortifications so that more money is spent on playing the patent game than it is on developing new technologies.

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