How do you spell relief? Well, in 2001, it was 6-3-2-9-9-1-9, the number of the patent awarded to IBM for a "System and method for providing reservations for restroom use".
That’s right, ladies and gentlemen. IBM devised a system that tells you when to crap. Unsurprisingly, this patent was challenged. And IBM – said to be somewhat embarrassed – did renounced it. Luckily, if the negative fallout from that fiasco made them want to kick themselves, they could have licensed Patent 6293874 to do it. But imagine, through some crafty acquisitions, they could have kept it and combined it with Patent 6401263 (Portable Urinal Apparatus) and Patent 6385796 (Self Flushing Urinal with Integrated Gaming and Reward System) for the ultimate bathroom trilogy, placing Big Blue’s spirit right there in the room with you.
Picking on IBM, but don't feel bad
I’m picking on IBM for two main reasons; (1) they are constantly one of the top recipients of patents (in 2001, they were awarded 3,411 patents and made $1.5 billion in revenue off of their patent portfolio – the world’s largest), and (2) have been known to leverage weak patents in order to force payment (ex., Sun in the past, Amazon recently).
Now, I am a fan of intellectual property, and some patents deserve to be so. But the system is broken, and what was devised to help foster innovation stifles it. Since patent litigation costs a great deal of money, it hardly helps the little guy – who is often the one who needs a working system of IP protection the most (well, it did help NTP, who didn't even bother to build the technology they claimed to own). Now big companies can amass thousands of patents a year, and because even weak patents are strong, can use them to squeeze money from big and small companies alike. Consider the well-known story of a meeting between IBM and Sun:
"After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues--all of whom had both engineering and law degrees--took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one."
"An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list." (source: Forbes)
IBM v. Amazon.com
So IBM’s most recent move is to go after Amazon for violation 5 of their patents:
5796967 - Presenting Applications in an Interactive Service.
5442771 - Storing Data in an Interactive Network.
7072849 - Presenting Advertising in an Interactive Service.
5446891 - Adjusting Hypertext Links with Weighted User Goals and Activities.
5319542 - Ordering Items Using an Electronic Catalogue.
The most alarming thing about them is that they describe basic online technologies for e-commerce. And if you’re unsympathetic to Amazon’s plight because of their own absurd patent litigation involving the 1-Click technology, remember that a win here by IBM could spell a lot of trouble for all of the other e-commerce sites that use “their” “unique” technology. I wonder if the attempted negotiations with Amazon were as amicable as with Sun?
Patents, the new Microsoft
Ah, and we now come to what many people dub the “evil empire”. True, Microsoft has also led their own patent filing frenzy. Consider the patent on “music analysis training” or this one on using the tab key to skip to the next browser link. And many are suspicious of their latest dealings with Novell. But before we blast them, let us not forget that the companies that consumers and techies tend to love – Apple and Google, for example – also do their fair share of patent filings. I like Microsoft and Apple and Google, all for different reasons - none of them have to do with patents.
The real enemy to innovation and open source is not one company – the real enemy is a broken patent system that awards absurd patents. A scruple-less business that has no problem extorting money via weak patents will act the same way tomorrow as they have in the past, unless the system is changed. IBM, attempting to show a better side, released 500 patents into the open source community, but their latest play against Amazon demonstrates a schizophrenic personality.
So we shouldn’t file patents?
So, do I encourage software companies to not file patents? Heck no! Since we have to operate in reality, and not with a better process we wish were in place, companies should file patents on the inventions important to their business. Why? Because a defensive patent is better than no patent. Companies who have invented products have been squeezed out by other businesses that have copied the invention but been the first to patent it. Small companies especially need to protect their investments, lest the big guys profit off of their hard work. What I am not endorsing is the filing of absurd claims with the expectations of easy riches. What I am saying is, you can operate in this current system in such a way as to protect yourself without trying to (undeservedly) profit off of others. Our company, like most, has benefited from the benevolence of developers who love to share knowledge – let’s attempt to find that happy medium where balance rules and everybody can benefit from the technology they create.
The Solution
Many have posited various solutions to the patent fiasco. My suggestion when a suitable alternative is created: patent it as “A System and a Method for an Accurate and Efficient Patent Approval Process”. Then, freely license it to the USPTO and never consider selling it to the likes of IBM. Otherwise, they just might use the threat of a huge lawsuit to ensure that things stay exactly the way they are.
Suggested reading: Math You Can't Use does a good job talking about current patent problems. Pick it up to read more about bad patents, such as Patent 6389458, which claims "popup browser windows" as a unique invention.
