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Microstrategy Loses Patent Fight

I really dislike software patents. I think they're the wrong mechanism for protecting the investment software companies make in their software. Add a broken US patent system and stir in some less than honest corporations and you end up with these frivolous patent suits. In this case, Microstrategy sued Business Objects over patent infringement. Instead of winning, they had their patents invalidated and end up with no case.

This case also highlights some major patent problems. Prior art is rarely discovered in software patents because it's inside products, and nobody discloses source code - that would be stupid. So in some cases the patents appear to be valid even though there is prior art to show that they aren't. There's also a sea of hidden software inside every corporation. IT departments don't sit around maintaining third party software all day. They also write code, none of which ever surfaces in a search for prior art. So do people writing code on their own. Then there's the vast library of open source software and shareware which rarely gets examined by the patent office.

Method patents are a particularly nasty form of patent. They are ambiguous and do not cover any novel invention 99% of the time. Instead, they cover a use for a something which may not otherwise be patentable. From the article:

"Finally, he ruled that Business Objects had not infringed the 033 patent, which describes a system for allowing users to request reports for later processing, and to prevent duplication of processing a report requested multiple times."

In other words, Microstrategy patented scheduling and caching. Somebody invented scheduling processes and caching results before Microstrategy, probably back in the 1950s. But theirs is unique because it's for scheduling reports? Please.

Patents were designed to protect unique invention in an era when invention required specialized equipment and processes, limiting the number of concurrent people who could work on a problem and making the prior art search much simpler. Software is different in that anyone can sit down in front of a computer and write code. The distributed nature of this development, different from the less ubiquitous development of material products, leads to things like hidden prior art.

It's also obvious when a new invention is worthy of a patent, unlike software, where we're seeing patents on the equivalent of different lengths of nail. If software were nails we'd see a patent on every color, length and material of nail. I'm surprised nobody has patented a FOR loop yet.

Link to patent article
Link to EFF so you can read up on the patent 10 most wanted

Posted by Mark Thursday, January 26, 2006 9:06:00 AM | permalink |