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Motorola Scores Patent Wins Over Microsoft, Apple
tlhIngan writes "This week is Motorola's lucky week; they've won twice in two separate patent suits. First, an ITC judge has ruled that Microsoft's Xbox 360 has violated 4 of 5 patents related to h.264. This is just a preliminary ruling (PDF) and both Microsoft and Motorola will face an ITC panel later this year. In the other case, the ITC judge has ruled Apple violates a 3G patent, one that a German court ruled that Apple didn't violate earlier this year. "
OK. Here's how software patents work.
There are hundreds of thousands of them. None of them required any investment to develop. They simply memorialize things that everyone always did - commenting inside of curly braces, using tables for compression, having the "AM" flip to "PM" when you scroll the hours past noon, having plugins in web browsers and "one click purchase buttons" and so forth.
No one can ever know what their work infringes on. Not even Microsoft or Google, who have carte blance budgets for such things. They simply write code and wait to get sued.
Even if the software patent fairy came down and waved her little magic wand, and you could know exactly which hundreds or thousands of patents you infringed, it would be worthless by tomorrow. Thousands of new patents are filed every day.
The only effect that software patents can have is to make every piece of code a ticking patent time bomb.
The scam was supported by a few, like Microsoft, because they saw it as a way to prevent competition and hurt free markets. They need only send part of their multi-million dollar legal team to the patent mines and amass a "war chest" that would enable them to sue others, and countersue when they were, themselves, inevitably brought to court. This would have the effect of making it impossible for anyone to write software without having a multi-million (these days multi-billion) investment in patent lawyers.
The only reason the U.S. has a functioning software industry is that the practice of using these patents is so repugnant and ridiculous that most businesses and all individuals ignore them.
Unfortunately, in their haste, cupidity and basic ignorance of cause an effect, backers like Microsoft neglected to realize that they would create a new kind of company, called a patent troll. These companies would buy patents that Microsoft was violating, and sue them. But Microsoft's patent war chest would be unusable as a defense, because patent trolls are very careful to do absolutely no useful work of any kind. Their entire business is suing the people who do actually do useful work. MS has already had 9-10 figures in judgments come in against them from trolls and they have had a few close calls with actually having to pay out.
If you are wondering who created software patent law, the answer is, not congress. Some lawyers tried it, and it flew, and it's happened all on its own - a little power grab by the patent bar and the USPTO.
This is partly why so few industrialized countries other than the U.S. have a software patent regime the way we do, because it is so prima facie ridiculous. They have been rejected in Europe and Asia. We are an international laughing stock for having such an obviously corrupt practice.
Meanwhile there is very little basis for software patent law to exist even on this basis in the U.S.. The Supreme Court has already famously struck down patents on i.e. math equations, which are vanishingly similar. They came quite close to explicitly striking down software patents already in En Re Bilski. The whole game will be up before long - no one has any choice. The more the practice grows, the faster it chokes itself off.
Good day, sir. Respond if you like, I won't read it.
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How can anyone hope to abide by copyright rules when even the courts can't sort out the mess!
Because as it turns out, German and American courts abide by different laws.
Maybe Microsoft and Apple should not have started the war by suing Android manufacturers.
When all you have is a hammer, every problem starts to look like a thumb.