The Software Patent Apocalypse Approaches

It is inevitable that the software patent situation in the USwill see dramatic change in the coming two years. The currentsituation is untenable, and the disruptive effect grows worse bythe day.

Software patents are a deadweight on innovation, only empoweringthe titans of industry. Consider that patents were conceived as away of defending inventors against the uneven leverage that wealthymanufacturers naturally held. Now it’s a tool for wealthymanufacturers/deeply established businesses to run inventors out ofbusiness(*), or to discourage them from even trying. Novel effortsare being abandoned rather than face the minefield of trivialpatents that covers every square foot of the softwarelandscape.

There will be no victors. A couple of established companies(with tens of billions in profits under their belt) are getting anearly start, leveraging the years of paper pushers filing trivialpatents (paradoxically cashing in on the billions they have in thebank from prior success. See the FAT patents as a perfect exampleof the patent system rewarding tremendous profitability byentrenching the same), but it’s a fool’s pursuit that is going tocome back and hurt them.

In the process they have given significant value and power topatents, undoubtedly awakening many small shops with a couple ofpatents sitting around. It’s time to call the lawyers.

Anyone who isn’t shopping patents right now is a fool. PitApple, Google, Samsung and Microsoft against each other, and getthem to pay top dollars for your trivial,obvious-but-who-cares-they-approve-those-too patent. These thingsmight be one of the most valuable asset many companies own rightnow, and if every company isn’t filing them by the hundreds (if notthousands) per month, they are doing it wrong. There is a crediblebusiness model in getting funding and doing nothing but filingspeculative patents.

* – One infuriating theme that recurs in mosttroll-filled patent discussion is the argument that you simply needto avoid infringing patents: Just stop copying other people’sinventions and you’ll be all good, we hear.

It is practically impossible to develop software withoutinfringing any number of patents. Further you don’t have to “copy”the filers “invention”, it is usually obvious and unavoidable, tobe “re-invented” by countless software developers. Apple’s claimagainst HTC includes a patent that, at the most Apple-friendlyinterpretation, holds them as inventing the concept of identifyingunique data structures and acting on them (which is a concept sorudimentary and laughably trivial that it should embarrass Apple toeven hold that patent). This is just an abomination. It is ahorrible situation.