My Position on Business Method Patents

This piece discusses my personal position on software patents, using a recent Microsoft patent announcement as the jump-off point.

Update: Slashdot already reports solid prior art.

"Microsoft has won a patent for an instant messaging feature that notifies users when the person they are communicating with is typing a message " [News.com]

Another stupid, obvious patent. AOL's AIM and Apple's iChat software infringe.

On the other hand, a News.com article from 2002 says:

America Online has quietly secured a patent that could shake up the competitive landscape for instant messaging software.

The patent (6449344), originally filed in 1997, and granted in September this year, gives AOL instant messaging subsidiary ICQ rights as the inventor of the popular IM Internet application. The patent covers anything resembling a network that lets multiple IM users see when other people are present and then communicate with them.

So it looks like AOL can fight back if necessary (I don't know where that would leave Apple and others). Update: Slashdot already reports solid prior art.

This is why companies that are responsible to their shareholders have no choice but to get software patents -- so they can fight back if necessary. The problem isn't with companies that get software patents, the problem is the environment. The PTO is so mindless in its inability to distinguish obviousness that way too many software patents are a joke, and do indeed have huge potential to obstruct industry progress. And software patents should be 3 years in duration rather than 20 because software evolves so quickly.

I am in complete agreement with Jeff Bezos on these issues. He's only doing what he has to do to uphold his fiduciary responsibility to his shareholders when Amazon gets patents. Arguably, he could be sued by irate shareholders if he didn't get them if it meant that Amazon didn't have the bargaining chips it needs to deal with patent lawsuits from others. (And it would mean that.)

Bezos argues that the system should be changed, and so do I. But while it exists as it does, he's going to do what it requires. So am I.

For the reasons stated above, plus a desire not to have Microsoft copy our hard-won ideas, Transpose, too, has software patents pending that could be considered to be "business method" patents. My current thinking on the issue, if those patents are granted, is to give free license to implementations which are free or result in only small profits, but retain the freedom to fight back against Microsoft and other large companies. I have begun to explore possible ways to build such licenses into the patents so that they couldn't be revoked.

Software patents suck, but if you're trying to be responsible to people who depend on you to make the right decisions financially, you gotta do what you gotta do.

You may have noticed that while I speak positively of Jeff Bezos above, I have also criticized specific Amazon patents.

As I said, Bezos is doing what he gotta do. He has to get those patents when he can to fulfill his responsibilities to his shareholders. That doesn't mean those patents are valid, i.e. enforceable by law. And Bezos knows it. Validity can only be tested in court. And look at who Amazon has sued: Barnes and Noble, which has plenty of legal resources to enable the judge and jury to fairly decide whether the patent is valid. No small companies or open-source projects have been harassed by Amazon over their patents.

The next step would be to do what I have outlined above, and actually provide an automatic free license to small businesses and open-source projects. That would increase Amazon's good will in the business and open-source worlds, and thus be good business, without harming Amazon's ability to duke it out with the Barnes and Noble's of the world. In effect, he has done that by not suing such embodiments of ideas patented by Amazon. Unfortunately, he has left the door open so that Amazon can change to a more obnoxious strategy if it wants to in the future, so we can't rest easy.

We'll see if they correct this in the future. I hope so.

I'll report here as my thinking (and the thinking of my company), evolves with respect to these issues.

Comments

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[Jonathan Linscott]

From the original post: "The PTO is so mindless in its inability to distinguish obviousness that way too many software patents are a joke, and do indeed have huge potential to obstruct industry progress."

Couple this reality with a big ocean filled with shark lawyers whose only imperative is billable hours, and you have a nearly impervious wall to progress.