Putting Patent Trolls on the Defensive

Software companies say overbroad patents held by others are among their biggest problems, leading to wasteful lawsuits and skyrocketing costs. The way they see it, patents that cover broad, basic concepts have helped give rise to the so-called “patent troll” – a company or individual who owns a patent and uses it not to make something but to sue innovators for infringement. Patent trolls sometimes win hefty damages or even, as in the BlackBerry case, try to shut down supposed infringers through court injunctions.

Coming to the rescue of programmers and other innovators is former corporate attorney Dan Ravicher, 31, who runs the Public Patent Foundation, a nonprofit devoted to filing requests with the U.S. Patent and Trademark Office (PTO) to reëxamine and revoke patents it considers overbroad.

In 2004, after Ravicher filed for a reëxamination of major patents owned by Microsoft for the FAT file-tracking standard, the PTO issued an initial decision rejecting those patents. It reversed that decision earlier this year. But in May, in another case initiated by Ravicher’s group, the office rejected some of Forgent Networks’ patent claims on the JPEG photo file compression standard. (That decision is not yet final.) Other Ravicher targets have included Columbia University and Pfizer. The group has been a pioneer in using this oft-overlooked technique to challenge patents outside the courts.

Ravicher thinks many major patents should never have been granted because the ideas they protect are so obvious. Intellectual-property suits have most famously affected open-source development – witness SCO’s claims of ownership to parts of Linux – but they’ve also interfered with innovation in commercial software, he says. Technology Review talked with Ravicher last week about the effects of patent policy on software innovation.

Technology Review: Is the patent system an important part of the current structure for rewarding innovation in the software industry?

Dan Ravicher: When developers think about why they’re writing today, it’s because they’re being paid to do the work, or because they have a passion and a desire to do it, or they want to get name recognition. Developers of software aren’t really incentivized by the potential to get a patent.

TR: If a patent will be out of date in a few years, why does it make a difference to competitors whether that patent was issued or not?

DR: The patent on some specific, highly tailored application is very rarely of any importance to anyone. The most valuable patents are ones that are on standards or other basic tenets of software technology that may still exist in the future.

TR: How are these patents on standards abused? Can a patent holder, regardless of the legal outcome, inflict damage on a developer?

DR: In a lot of software patent cases we’ve seen, the patent holder ends up losing – but only in court. But that doesn’t mean the developer didn’t lose a substantial amount of time and money and distraction. Simply because many software developers are resource-deprived, they’re denied a fair day in court to prove their innocence.

TR: Can you give an example of how that has affected software development?

DR: Some of the initial patent trolls in the late 1990s and early 2000s were personally going around and asserting their patents against small companies. When they got letters, many of the startups just decided to pack up business instead of continue with it, so that stopped their development. If you go to the opposite extreme, you can see the cases that have been brought against Microsoft by patent trolls. Resources at Microsoft that should have gone to advancing technology to make functionality go quicker, better, cheaper actually had to be wasted on reinventing the wheel to get around this patent that was being asserted against them, by someone not doing software development.

TR: So sometimes you are actually sympathetic to Microsoft?

DR: They recognize that software patents are posing a threat and are causing harm to all software. Some people think it’s just open-source software that’s being prejudiced by software patents. It’s not.

TR: In other cases, though, you view Microsoft as an aggressor. In January the PTO rejected a request of yours that would have stripped Microsoft of its patents for its FAT file-tracking software. What does this say about how effective the reëxamination weapon can be, and will any good come of this case despite the rejection?

DR: What Microsoft did, in responding to the patent office’s [initial] rejection of its claims, was to take some positions regarding the scope of its patent that made the patent narrower than when it was originally issued. Now there will be room for people to implement a FAT system without infringing the new claims even though it may have infringed the old claims. So although Microsoft will still have a patent, it will be a much weaker patent.

TR: You’ve had tentative success fighting Forgent’s patent on the JPEG standard, the subject of litigation targeting dozens of users ranging from Apple to Xerox. Has that led to any positive repercussions?

DR: The judge in the litigation construed the claims of the patent very, very narrowly. So it’s pretty much a slam-dunk that Forgent will lose as long as that claims construction gets upheld. I think I remember the judge noting that this reëxamination was going on and that there were still questions about the validity of the patent.

TR: You say the system gives an intrinsic advantage to big developers over small developers. So why have many small, open-source efforts like OpenOffice and Firefox succeeded?

DR: There are many reasons. One could be that they don’t yet pose the commercial competitiveness necessary to justify a major patentee challenging them. The developers themselves may not be suitable defendants. The patent system hasn’t yet gotten as bad as it could be for them – though it does pose a threat.

TR: How would you describe that threat?

DR: The software ecosystem actually prefers free software, open software, sharing and learning what others have done and advancing that. The patent system, this form of government regulation, gets in the middle of the software ecosystem and mucks it up. The winners in the software marketplace should be determined by consumer choice – whichever products are cheaper and faster – not by some regulatory scheme.