Open-source allies go on patent offensive

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Winners, losers, and ...: Winners. Yes there are usually some, even in zero-sum games (of course there have to be offsetting losers - as I tell my wife in casino - and I'll come to that).

1. The lawyers. And their lobbyists. Software patents greatly expanded the source of revenue for patent law firms, and these are easy pickings. A software patent application costs relatively little to prepare (why bother with prior art search), and award is virtually guaranteed. Last I saw, IP attorneys were the top of the earnings heap, displacing bankruptcy attorneys, who held the mantle in the early 90s.

2. The USPTO. Ironically, software patents have turned into a cash cow and current management is addicted to the income. Patent examiners now make 10% above the base federal salary, unlike IT Specialist for example, extending all the way to GS-15; not sure about the SESers, of which there are plenty. The agency (in crisis and loving it?) has moved into its sumptuous new quarters in Alexandria, Va. It has all the latest goodies, including the most elaborate search system in the Trilateral - still worthless for software, but so are they all. The quality of U.S. patents is undeniably a disgrace, but that part is left for the "losers."

3. Examiners. Their annual bonus depends on performance against quota for each of the four quarters. End of quarter is always panic time - no infrastructure changes, examiners working around the clock to finish out the quarter. Not so the software examiners, who can concentrate on the legalities of the application - compliance with applicable CFRs and regulations - and forget prior art search, which would be futile. Software examiners beat their quota relatively early in the quarter and make out big time.

4. Inventors. PTO does volume business, thanks to the software patent. U.S. fees are less by far than those of the other Trilateral members. But there is a flip side to this as well.

4. Big business (potentially). Thus far, the enormous collective patent portfolio has been almost completely innocuous. Litigation is close to zero; certainly we do hear of cases, some high profile and more often than not egregious. But patents provide a weapon to erect impossible barriers to entry, if incumbents care to make use of them. Frankly, the barriers are so high without patents that it is unlikely anybody could go into the software development as a business.

Losers. Who won't you find in this list? The lawyers.

1. The PTO. Richest by far of the Trilateral, the prestige and respect of USPTO are rock bottom. The U.S. patent as currency is thoroughly debased. PTO's biggest problem is manpower. Examiners are Federal employees, and Congresspeople love to tell the folks back home how they have trimmed the fat by reducing the size of the government. PTO lives under severe staffpower restrictions and has to allocate scarce resources across all sectors. PTO's system is the definition of world class, but software draws down so much on human resources that legitimate applications are shorted.

2. Inventors. U.S. patents are cheap, in both senses of the word.

3. Economy. If the U.S. Chamber and SBA are to be believed, nine out of 10 (or some such figure) new jobs are created by small business. To be blunt, you would have to border on the insane to found a software business with that patent minefield out there.

But overall, don't rock the boat, we all do well by doing good .

At risk. Who is most worried about patent terrorism? Remember there are several firms just accumulating patents, with no declaration of intent. Massing troops on the border, but which border? And why? Well, recall that somebody reading code - much easier than reverse engineering - and found Linux infringing more than 200 patents? Whose software is about an 80% overlap in functionality with Linux, and a likely infringer of hundreds of patents? Who is completely dependent on two software product lines for almost all income? Who posseses a huge cash target? Who retained Bruce Lehman when he left office? Notice how Microsoft's saber rattling has quieted in the last year (even No_Ax, who touted MS as a future patent terrorist seems to have decided to beat other drums). Latest I heard, MS has no workable strategy against an assailant that has no need for patents other than for litagation.

Yes, software patents are a good thing if you're a lawyer. Otherwise...; Posted by: IT_User Posted on: 08/12/05 You are currently: a Guest | Members login | Terms of Use