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A Fix For Microsoft's Patent FUD?

My rant on Microsoft CEO Steve Ballmer's latest FUD attack on Google is only a sideshow to the main event, which is Ballmer's unremitting logorrhea about Linux. The Linux community is fighting back with efforts like Bryan Peters' Show Us the Code Web site, but it's going to take more than that to get Microsoft to put its intellectual property where its mouth is. And while Ballmer is wildly misusing patents in his attack, an interesting proposal for a change in granting patents could be what shuts him up.

Peters is a Linux fanboy who used his site to post an "Open Letter to Steven Ballmer" calling on the Microsoft CEO to provide specifics to back up his threats against the Linux community:

"The request is simple, since you, Microsoft, claim to be so sure of yourself: Show Us the Code. Show us the Code and Show Us the Patents. Let's make this crystal clear.

"If Linux developers are made aware of the code and patented ideas, then the code can be omitted and Linux can re-write necessary aspects of the kernel or operating system. This is a fairly simple request and common courtesy. Why wave around lawsuit threats, threats that will cost Microsoft in a court room as well as the defendants? It lacks logic, especially when you consider that there are developers around the world who would be more than happy to work with Microsoft to resolve this issue. Don't you owe it to your shareholders to work with others to ensure their intellectual property isn't being violated?"

While Peters' heart is obviously in the right place, his approach is faulty, as Steven J. Vaughan-Nichols points out in a recent Linux Watch article: Vaughan-Nichols writes, "In this assault on Linux, Ballmer is broadly hinting that Linux is infringing on Microsoft's enormous patent portfolio. And, when it comes to patents, there is no 'code' to be shown."

In the United States, software patents are granted to cover not specific code, but general descriptions of what computer code would do. This is obviously so fraught with potential for abuse that the European Union, as one example, doesn't grant software patents.

Ballmer's bluster (remember back in 2004 when he told Asian government officials that if they used Linux they would be sued because Linux violates 228 patents?) rests on what Vaughan-Nichols calls "the diabolic evil" of the American patent system. The solution, he says (and I completely agree) is to do away with patents on software (and, I would add, with similar ill-conceived design patents like those that cover business processes), "The patent system is truly dysfunctional," he says, "both for proprietary and open source software companies."

So how do we make it more functional? I came across an interesting, if rather Swiftian proposal on another Linux fanboy site, LXer. In response to a December posting about Microsoft filing for patents on technology used to organize and read syndicated Web feeds, a thoughtful commenter identified only as DarrenR114 notes the problems with design patents and offers the opinion that a big part of the problem is patent attornies who don't do the required due diligence to discover prior art which would invalidate the patent claim.

Of course, there are reasons not to find prior art. What if Microsoft, for example, discovered that somebody else (like Dave Winer, maybe?) had already thought of really simple syndication methods (and even called it RSS, maybe?) And patent attorneys, like CEOs, know which side their bred is buttered on.

DarrenR114 writes:

"The patent office cannot simply rely on its own experts - there are too many applications. It must rely on the integrity of the attorneys, and those applicants filing "pro se".

An idea I think that might go a long way toward patent reform is to institute a "three strikes" policy. If an attorney submits three patent applications that are later invalidated, their certification as a patent attorney should be revoked. If a company submits three patent applications that are later invalidated, then that company should not only be barred from future submissions, but any patents it currently holds should be placed in the public domain. The same should go for any inventor.

Can you imagine how many patent applications would suddenly go away?

Or how many CEOs would grow suddenly quiet?

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