End of the World Nigh: VCs Clueful on Patents

And now for some good news about patents - no really. Judging by this article on the excellent Techdirt, a few of the brighter VCs are starting to get the message about software patents. Next thing you know, even the lawyers will join in - then we'll know that the end of the world is really nigh.

Right-minded Right to Create

As you may have noticed, some of the more outrageous abuses of the patent system tend to make me go a funny colour. So I was interested to discover (via Techdirt) that there is an entire right-minded site called Right to Create offering a concentrated helping of bile directed at the manifold insanities of the patent system.

The only trouble is, having read it, I think I need to go and lie down for a while.

(Patently) Right

Paul Graham is a master stylist - indeed, one of the best writers on technology around. Reading his latest essay, "Are Software Patents Evil?" is like floating in linguistic cream. And that's the problem. His prose is so seductive that it is too easy to be hypnotised by his gently-rhythmic cadences, too pleasurable to be lulled into a complaisant state, until you find yourself nodding mechanically in agreement - even with ideas that are, alas, fundamentally wrong.

Take his point in this recent essay about algorithms, where he tries to argue that software patents are OK, even when they are essentially algorithms, because hardware is really only an instantiation of an algorithm.

If you allow patents on algorithms, you block anyone from using what is just a mathematical technique. If you allow patents on algorithms of any kind, then you can patent mathematics and its representations of physics (what we loosely call the Laws of Physics are in fact just algorithms for calculating reality).

But let's look at the objection he raises, that hardware is really just an algorithm made physical. Maybe they are; but the point is you have to work out how to make that algorithm physical - and that's what the patent is for, not for the algorithm itself. Note that such a patent does not block anyone else from coming up with different physical manifestations of it. They are simply stopped from copying your particular idea.

It's instructive to look at another area where patents are being hugely abused: in the field of genes. Thanks to a ruling in 1980 that DNA could be patented, there has been a flood of completely insane patent applications, some of which have been granted (mostly in the US, of course). Generally, these concern genes - DNA that codes for particular proteins. The argument is that these proteins do useful things, so the DNA that codes for them can therefore be patented.

The problem is that there is no way of coming up with an alternative to that gene: it is "the" gene for some particular biological function. So the patent on it blocks everyone using that genomic information, for whatever purpose. What should be patentable - because, let me be clear here, patents do serve a useful purpose when granted appropriately - is the particular use of the protein - not the DNA - the physical instantiation of what is effectively a genomic algorithm.

Allowing patents on a particular industrial use for a protein - not a patent on its function in nature - leaves the door open for others to find other chemicals that can do the same job for the industrial application. It also leaves the DNA as information/algorithm, outside the realm of patents.

This test of whether a patent allows alternative implementations of the underlying idea can be applied fruitfully to the equally-vexed questions of business methods. Amazon's famous "one-click" method of online making purchases is clearly total codswallop as a patent. It is a patent on an idea, and blocks everyone else from implementing that (obvious) idea.

The same can be said about an earlier patent that Oracle applied for, which apparently involved the conversion of one markup language into another. As any programmer will tell you, this is essentially trivial, in the mathematical sense that you can define a set of rules - an algorithm - and the whole drops out automatically. And if you apply the test above - does it block other implementations? - this clearly does, since if such a patent were granted, it would stop everyone else coming up with algorithms for conversions. Worse, there would be no other way to do it, since the process is simply a restatement of the problem.

I was heartened to see that a blog posting on this case by John Lambert, a lawyer specialising in intellectual property, called forth a whole series of comments that explored the ideas I've sketched out above. I urge you to read it. What's striking is that the posts - rather like this one - are lacking the polish and poise of Graham's writing, but they more than make up for it in the passion they display, and the fact that they are (patently) right.

United States of Patent Absurdity

If you ever wondered how the US got into such a mess with patents on software and business methods - and wondered how the European Union can avoid making the same mistakes - take a look at this excellent exposition. As far as I can tell, it's a condensed version of the full half-hour argument in the 2004 book Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It.

Read either - or both; then weep.

Words - Fail - Me

Amazon is being accused of infringing someone's patents.

For inventing a Web registration system.

What can you say?

Patently, Absurdly, Patent

This well-written piece about the current legal tussle between Research In Motion (RIM), makers of the Blackberry, and New Technologies Products (NTP), is worth reading - even though it's a long story, and, like me, you probably don't really care about the details of this sorry tale. For what it does serve to hammer home is the unutterable stupidity of the patent system in North America.

So what does the titanic struggle described in the article come down to? - a petty squabble over the "invention" of delivering email by wireless, whose obviousness is only marginally less than that of other deep ideas like that of the sun rising tomorrow, or rain being wet.

If nothing else, this story should emphasise the critical need for an overhaul of the North American patent system, and for a vigorous defence of the European system, which - currently, at least - would never have allowed this judicial folly to proceed in the first place.

Google: Friend or Foe?

"Don't Be Evil" is the company motto: but is Google for us or against us?

I'm not talking about justifable concerns that it knows far too much about what interests us - both in terms of the searches we carry out and (if we use Gmail) the correspondence we send and receive. This is a larger issue, and relates to all the major online companies - Microsoft, Yahoo, even Amazon - that mediate and hence participate in much of our lives. What concerns me here is whether Google can be considered a friend of openness.

On the one hand, Google is quite simply the biggest open source company. Its fabled server farm consists of 10,000s/100,000s/1,000,000s (delete as applicable) of GNU/Linux boxes; this means that anyone searching with Google is a GNU/Linux user.

It has a growing list of code that it has open-sourced; it has sponsored budding hackers in its Summer of Code programme; and it keeps on acquiring key open source hackers like Guido van Rossum (inventor of Python) and Ben Goodger, (Firefox lead engineer).

On the other hand, Google's software is heavily weighted towards Microsoft Windows. Programs like Google Earth and Picasa are only available under Windows, and its latest, most ambitious foray, the Google Pack, is again only for Microsoft's operating system. This means that every time Google comes out with some really cool software, it is reinforcing Microsoft's hold on the desktop. Indeed, we are fast approaching the point where the absence of GNU/Linux versions of Google's programs are a major disincentive to adopt an open source desktop.

This dilemma is unlikely to be resolved anytime soon, since Google clearly wants to serve the largest desktop market first, while drawing on the amazing price-performance of free software for its own computing platform.

But there is another area where it has the chance to play nice with openness, one that does not require it to come down definitively on one side or the other of the operating system world.

Another Windows-only product, Google Talk, is the subject of a lawsuit alleging patent infringement. However, closer examination of the two patents concerned, Patent Number 5,425,085 - "Least cost routing device for separate connection into phone line" - and Patent Number 5,519,769 - "Method and system for updating a call rating database", suggests that one of the best ways Google could show that it is a friend of both open source and proprietary software is by defending itself vigorously in the hope that the US Patent system might start to be applied as it was originally envisioned, to promote innovation, not as an easy way of extracting money from wealthy companies.

Update 1: Google has come out with a Mac version of Google Earth. It's a start.

Update 2: There are rumours about Google working on its own desktop GNU/Linux. Frankly, I'll believe it when I see it: it's a poor fit with their current portfolio, and the margins are terrible.

Update 3: Comfortingly, these rumours have now been scotched.

Open Beats Patent

One of the themes these postings hope to explore is the way in which openness, in all its forms, can function as an antidote to the worst excesses of the current system of intellectual property. In particular, freely-available knowledge is one way to mitigate the patent system, which has problems all around the world, but is in a particularly flawed state in the US.

As an example, BBC News has an interesting story about how India is creating a database of materials relating to traditional medicine in order to stymie attempts by companies (particularly US ones) to patent this age-old knowledge.

What is particularly galling is that patenting derives its name from the requirement to make a novel and undescribed invention "patent"; but in the case of knowledge that has been available to a society for centuries, the idea that someone (particularly an outsider to this society) who makes something already known "patent" in this way suddenly gains exclusive rights to a hitherto common good is profoundly offensive to anyone with any respect for ethics - or logic.

Microsoft: Same as It Ever Was

So Microsoft is up to its old, foxy tricks.

The European Commission is threatening the company with daily fines of "up to" two million Euros. Leaving aside the fact that "up to" includes small numbers like ten, even if Microsoft were fined the maximum amount every day, its huge cash mountain means it could happily tell the Commission to take a running jump for several decades at least.

Of course, it won't come to that. By refusing to comply with the Commission's requests, Microsoft is playing its usual game of chicken. If it wins, its gets away scot-free; but even if it loses, it can still get everything it needs.

The reason for this can be found at the end of the document linked to above. Microsoft is (cunningly) digging its feet in over the first of two issues: "complete and accurate interface documentation". The second issues concerns "the obligation for Microsoft to make the interoperability information available on reasonable terms" as the Commission press release puts it.

The giveaway here is the phrase "on reasonable terms". Back in 2001, the very guardian of the Web, the World Wide Web Consortium, proposed adopting a new patent policy framework that would allow its recommendations to be implemented using "reasonably and non-discriminatory" (RAND) licensing terms. However, as people soon pointed out, this would effectively lock out open source implementations, since RAND terms might easily be incompatible with popular licences (notably the GPL, the cornerstone of the free software world).

After a fairly bloody fight within the cyber corridors of power, good sense prevailed, and the final recommendation came down squarely in favour of royalty-free licensing: "The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a Royalty-Free (RF) basis."

So all Microsoft has to do to stymie its greatest rival - open source software - is to accede to the European Commission's request and graciously adopt "reasonable terms" for access to its interfaces - reasonable, non-discrimatory and completely incompatible with free software licences.