|Column Tag:||State of the Industry
A horrific story about patents
By Eric Shapiro, Ann Arbor, Michigan
I was minding my own business one afternoon and who should call me but one of my publishers. I received a letter today, he began, from a company that claims that your software violates one of their patents.
I chuckled at first, until I realized that April 1st was an entire month away. The tone in his voice indicated that this wasnt a scheme to lower my royalties either. Thats impossible, I said, my software doesnt really do much of anything.
Fifteen minutes and one fax later, I wasnt laughing anymore. I received a copy of a very legal sounding cover letter claiming patent infringement along with a 10 page copy of the patent itself. As I read the patent, I was dumfounded that anyone could patent something this ridiculously obvious. The more I researched the issue, however, I discovered that this is the norm and not the exception in the United States patent system.
First let me describe my software. Its a control panel called VideoBeep that lets users assign QuickTime movies to various system events such as inserting a disk or emptying the trash. Its not particularly original or useful, but can be a lot of fun since its bundled with several disks full of clips from the movie Star Wars®.
The patent, #5012334, is entitled Video image bank for storing and retrieving video image sequences. The patent holder, Tektronix Inc., insists that their patent applies to our product. They claim to have invented the very system for storing indexes to video media on computers. Their cover letter states:
Claims 1 and 5 [of the patent] apply to the use, in conjunction with other products, of a video disk (or CD-ROMs or floppy disks) to hold an indexed library of video image sequences. Claims 9, 11, and 12 apply to the use of key words to index, classify, and access video image sequences.
This states, as far as I can tell, that all use of video in conjunction with computers falls under the domain of their patent! In short, we should thank them for inventing the entire multimedia industry and pay them royalties.
I talked to several people familiar with patents and heres what they said:
1) The Patent Office doesnt know very much about computers, so they tend to approve even the most simplistic patents and then let the courts decide which ones should stand.
2) The patent office is often more concerned that the complicated paperwork is filled out properly than with the originality of the request.
3) A patent search is done before a patent is issued, but a search through books and magazines is generally not made, as it takes too long. This means that a lot of patents are granted for things that arent original.
4) Companies holding patents like to attack small companies first, knowing that a smaller company is unlikely to win a court battle. Once the case has been won, legal precedence has been established and future court cases against larger companies are more likely to end in their favor.
5) A court case will generally cost at least $30,000 in legal fees and possibly as much as $1 million! Many companies settle out of court for this reason or sign cross-licensing agreements.
The problem with the current system is that companies can patent ridiculous and obvious inventions, and then force another company to prove that the patent shouldnt stand. In short, we programmers must prove our innocence rather than having them prove our guilt!
It may be several years before this issue is resolved, as in the Microsoft/Apple battle. The court system is slow and Congress has been remiss for a decade in not updating patent and copyright law to apply properly to computers and software. The immediate problem, however, is that a bureaucrat with little understanding of computers is right now approving patents that may affect your next software product.