The notion of patents in the computer industry has a long and stormy history.
Even people who support patents believe that some patents go too far, and criticize the Patent Office for performing inadequate prior art review and having inadequate technical knowledge on staff. The result is that some companies end up with overly broad patents years after the fact that enable them to hamstring an entire industry that's sprung up since then. Organizations such as the Electronic Frontier Foundation's Patent Busting Project has been tacklling such issues, with reasonable success.
And there's often been scorn heaped on so-called "patent trolls," or companies that exist for the sole purpose of buying up patents and then suing potential infringers, without having the intention or capability of actually manufacturing products based on the patents.
But in recent months, there have been a number of incidents with major companies -- household names like Apple, Microsoft, and Google -- acting in ways that aren't so different from those of "patent trolls." These companies are spending billions of dollars to acquire patents from companies that are going out of business or, at least, going out of a particular industry, when it isn't at all clear that they're acquiring the patents for their own use -- and then filing lawsuits against companies they claim are infringing. Writes the Wall Street Journal:
"The Novell patents are part of a whirlwind of patent disputes in the mobile phone market, much of it focused on Android, the free Google mobile operating system that has quickly become the top software powering smartphones. Microsoft, Apple and Oracle have filed a series of patent lawsuits against companies ranging from HTC to Motorola to Google itself over alleged violations of their intellectual property. Google’s Drummond on Wednesday called the actions a “hostile organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.”"
Now, the U.S. government is getting into the act, with HR 1249, the Leahy-Smith America Invents Act. The House and Senate have each passed the bill, and President Barack Obama has indicated that he intends to sign it. It includes a controversial provision that nonetheless brings the U.S. in line with the rest of the world: a "first to file" provision, as opposed to the current "first to invent" system. While this may reduce litigation, critics say it confers an advantage to big companies that have more people around to file patents.
However, two factors remain.
First, the version the Senate passed isn't the original. "[M]issing from the bill is the thing that launched it in the first place: an initiative to replace the system of determining damages and, in so doing, reduce the amount of huge jury awards," writes Scott Fulton in Read Write Web. The brunt of the impact would have been felt most about patent trolls, he adds. " If a party had no intention to produce or manufacturer actual products based on its technology portfolio, a complainant would have to demonstrate that it would have licensed that technology for a reasonable sum to someone else who would have. If that expert analysis prevailed upon the jury, then the most the portfolio company would have been able to reap in damages would be damages equal to lost licensing fees."
Second, analysis of the bill indicates that it isn't going to do much to stop software patents or current litigation.
Assuming the President actually does sign it, it'll then be a matter of time before it's determined what effect it will actually have on the industry.