By James Kwak
Charles Duhigg and Steve Lohr have a long article in the Times about the problems with the software patent “system.” There isn’t much that’s new, which isn’t really a fault of the article. Everyone in the industry knows about the problems—companies getting ridiculously broad patents and then using them to extort settlements or put small companies out of business—so all you have to do is talk to any random group of software engineers. And it’s not as much fun as the This American Life story on software patents, “When Patents Attack!” But it’s still good that they highlight the issues for a larger audience.
The article does have a nice example of examiner shopping: Apple filed essentially the same patent ten times until it was approved on the tenth try. So now Apple has a patent on a universal search box that searches across multiple sources. That’s something that Google and other companies have been doing for years, although perhaps not before 2004, when Apple first applied. There’s another kind of examiner shopping, where you file multiple, similar patents on the same day and hope that they go to different examiners, one of whom is likely to grant the patent.
According to law professor Jay Kesan, things are fine as they are: “If someone gets a bad patent, so what? You can request a re-examination. You can go to court to invalidate the patent.” But Kesan must know the costs of patent litigation—potentially tens of millions of dollars for a trial that goes on for years, which can easily swamp a startup’s budget. And in the meantime, corporate customers will be uneasy about buying a product that could be enjoined because of twelve random people in Delaware. Duhigg and Lohr profile Vlingo, a voice-recognition company that won against a patent infringement suit brought by Nuance, its larger competitor—but sold out to Nuance rather than have to pay for four more similar suits.
Vlingo’s founder since decided to quit the voice recognition field—his area of scientific expertise—because of the legal landscape. I would have serious second thoughts about starting another software company today, given what I know about software patents. How is that good?
The bad news, if you need any more, is that we only have one patent system. And much as software people hate it, pharmaceutical people like it—or, rather, they want to make it even easier to get and use patents. Since pharma outweighs software in Washington, change is unlikely to happen anytime soon.