Editorial: Not Everyone Understands the Patent Situation

It is when I read articles like this that I have “my blood all going up to my head” (that’s a Greek saying for people that get angry). So apparently, Apple is trying to patent “transparent windows that do a certain action after fading away”. While I don’t personally find this “innovation/invention” patentable, it’s fine with me: Apple is doing the best it can to secure its business (maybe I would do the same if I had shareholders on my back).But it’s when I read things like this: “…as for Linux, it wouldn’t be a shame if the folks developing GUIs for it had to come up with their own ideas, would it?” that it really makes me wonder if people really know what they are talking about.

To be clear, I don’t really like seeing companies going mad on patenting everything they can come up with, however I recognize that this is the business reality today in US: it’s a way for businesses to cash in. Having patents is literally a cash cow in US and let’s face it: businesses only care on making more money. So, while it is not ‘moral’ to have patents about ridiculous things, it is legal and it is also a necessity, as all of their competitors do the same. In a way, it is defense measure and an understandable one under the circumstances.

But my real problem is with people (self-acclaimed as tech-minded) not being objective to the situation. And the situation really is sad, having companies patenting everything they can think of. Most people can’t forsee that by patenting trivial ideas these companies are squashing general progress. Being in the technology field (and also the sole reason for me running OSNews) is out of love about the technology itself. No matter if that technology comes from Microsoft, Apple or anyone else. What matters to me as a geek is technological progress, progress of our civilization to a better tomorrow (yes, I do enjoy Star Trek too).

But this technological progress can not happen when we have money-harvesters patenting the most trivial things; things that most of the times we are taken for granted. And what’s more to this, people don’t understand that 99% of the times, using a certain technology that someone else used before is not stealing or copying, but simple progress and natural evolution.

Want an example? Here it is: Be, Inc. had plans to create a QuarztExtreme-alike capability (with 3D acceleration on a 2D desktop and all that gibberish) already in 1999. Should Be, Inc. was in good health and not abandoned BeOS, I am pretty sure we would have something like it today to enjoy through BeOS.

Does the above mean that Be stole the idea from Apple? Or that Apple stole it from Be? The answer is NO. Having a QE-like architecture is simply sign o’ the times. It’s just that its time had come to be implemented because the 3D cards were getting powerful and capable of doing so. Engineers doing R&D (or simply being visionares) around the world do come up with similar ideas, it happens, get over it. It is not “stealing”, it’s just that the technology progress at a given moment makes it right to implement the A or B feature.

And the above is just one example. Now, having a company having a patent on transparent windows –something that’s being used everywhere already–, or a patent on menu lists, these are some of these trivial things that the US Patent Office should be answer for if they validate it (and they have a lot to answer for already).

I mean, how do you go to “innovate” when you are not allowed to use trivial things that could build on your innovation? What if you have this great idea that consists of these 10 things and includes 1 brand new thing and the rest 9 are trivial things but already patented? How do you go about it if you are an open source developer or project? Or even if you are a small proprietary company with not enough money to pay for these 9 patents. How do you build on your innovation when you have all these trivial things not being free for usage? To me, the current patent reality shows that it is a system that favors the rich and strong (who have money to both file and license patents) and completely undermines the business and legal status of small software houses and OSS.

Nat Friedman from Ximian said a great quote a few months back: “you can’t write more than 1000 lines of code these days without hitting on a patent — without your knowledge”. And according to some others, as much as 90% of the patents in USA should have never being granted as they are of questionable nature and plagued by trivialities.

Please note that I am not against patents. Patents are a good way to protect and secure a true innovation/invention that costed a lot of money to your firm to R&D it. A popular example are the mp3 patents. It took Fraunhofer and Thompson a lot of money, a lot of real research and a lot of time to come up with mp3 — believe it or not. They deserve some of their patents and they do deserve their licensing fees. These guys did real innovation, they created something that really didn’t exist before: a technology that needed a lot of engineering effort to create. Mp3 back in the ’90s was the kind of engineering that wasn’t just an “idea”, but real work with complex algorithms. Something that seems fair to patent, that is.

But when we have to deal with the US patent office that are so easy to grand patents on everything they lay their hands on (in contrast to let’s say, Japan’s patent office which is much more strict and with fair rules) the situation creates a chaos and undermines industry’s own technological excellence. Patent transparency on a window, or patent a music player’s UI, or patent a menu list that can hold different kind of objects? That’s like patenting the fact that “1+1=2” and then you go out like a jerk and ask the poor guys to “pay up or come up with your own ideas and not copy that fact”. How do you compete on a system that there is so much idiocy and lack of freedom on basic things?

Miguel de Icaza believes that you (legally) can’t. And this is why he believes that small software companies and open source software will thrive on countries that are not plagued by the patent nightmare, and not in US (and unfortunately not in Europe either). Not yet at least.

IMHO, US is shooting its own (industry) foot by being so relaxed on the way it handles its patents. And the economical/technological result of this shooting will show up in about 5-10 years from now. Just wait and see.


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