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Open Source Development and the Patent Trolls

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If you’re wondering why software development in the United States is coming to a screeching halt, look no further than software patents. Here’s the way it works. All of your favorite technology companies now have stacks of software, business method, and design patents for things as obvious as the shape of a cellphone or a tablet computer that you could have seen on Star Trek in the 1960’s. And then there’s the slide to unlock "invention" that could be found 40 years ago in almost every apartment in the United States and was shown in The Predator movie in 1987, decades before the geniuses at Apple invented it. The list is endless, of course, because the U.S. Patent and Trademark Office now issues software and design patents with about the same scrutiny that a kindergarten teacher employs in deciding whether kids can have permission to go to the bathroom.

So now that you have your software patent arsenal, what do you do with it? In the case of most companies, they quietly reach cross-licensing agreements with other companies which permit others to use their patents so long as the other company reciprocates. Who gets screwed in this arrangement? Startup companies and open source developers!

And then, of course, there are the companies that have convinced themselves that they really did invent all of these things they saw in the movies or saw at Xerox PARC or Wang Labs. Just like the politicians with their unaffiliated super PACs, these companies don’t want to be tarnished by daily headlines showing them suing every Tom, Dick, and Harry that now wants to create a mouse or a new piece of software. Instead, they license or sell their patents to patent trolls, shell companies whose only reason for being is to enforce patents and extract licensing fees with no fingerprints back to the original patent holder. And, what a coincidence. They’ve all set up shop in Texas where they at least believe they have found a sympathetic judiciary to hear their cases. In short, patent trolls provide the original patent holder with deniability (think Mitt Romney and Newt Gingrich) while decimating the competition, a.k.a. young companies without a patent portfolio. It also, of course, has a chilling effect on open source development. Can you guess who reaps the financial rewards from patent trolls?

In fact, the situation has gotten so extreme that patent trolls now are a serious threat to the once blossoming open source development community. Here are a couple of examples. One of the most fertile areas for the patent trolls these days is robocalling software. In a nutshell, you have a database with people’s phone numbers, and a computer is used to dial the numbers and then play a recorded message. One of the key defenses to patent claims is "prior use" which means someone else thought of it before you got your patent.

Here’s the actual history of robocalling from our first-hand experience. In the late 1970’s, I was working with a federal court in Washington, D.C., and we were developing a case management system using Wang VS minicomputers, one of the first computers that bridged the gap between the data processing and text processing worlds. This led to all sorts of creative new uses for computers, and a group of us that were application developers using these computers met regularly to compare notes. I recall specifically making several visits to the Republican National Committee in Washington. They were developing, you guessed it, a robocalling system to deliver campaign messages using a Wang VS computer. If you flip to page 1-4 in this Wang VS Data Communications Guide, you’ll find a discussion (in 1979!) of what Wang called Automatic Calling Units. These were the hardware add-ons designed specifically by Wang to let VS computers do robocalling. And the Republican National Committee was hard at work writing code to do just that. It was used extensively in the 1980 election cycle, 31 years ago! No one at the time had ever heard of software patents. And yet there are software patents granted years later for the identical and obvious methodology employed by the Republicans long before Newt. Crazy!

Another example is speech-to-text software. Typically a recorded voice message is passed to a computer, and the computer transcribes the spoken words into plain text. While the technology to translate spoken language into text would certainly warrant a patent, the obvious ideas on how to use speech-to-text technology are dubious insofar as patents are concerned. For example, some obvious uses include transcribing and delivery of voicemails via email and text messaging or Twitter, transcribing dictation, language translation, and automatically placing phone calls by looking up a spoken name in a directory. The list goes on and on. These apps are trivial to build and obvious to anyone that has used computers over the last 40 years. The only real value-add in these apps is the inclusion of speech-to-text translation which Google is giving away at no cost. Delivery of voicemails via email or SMS, for example, has been an integral part of every PBX and virtually every cordless phone system since the telecommunications industry began. If there still is a valid patent for this (and we haven’t researched it), then perhaps a different delivery mechanism such as Twitter or Google+ might be options worth considering. See this transcription of Andrew Tridgell’s talk on Patent Defenses for some ideas. The problem is that nothing apparently is obvious to the patent examiners working in the U.S. Patent & Trademark Office. Nor has USPTO been vigilant in enforcing the requirement that those applying for a patent disclose prior art. And, remember the old adage that you can’t patent an idea? Wrong again! There are thousands of them, and the list is growing.

I know many of you are sitting back thinking you’re immune from a shakedown and believing this only applies to businesses. Got a Wi-Fi router in your home? Then think again. As recently reported by ZDnet:

Innovatio IP, a new company that exists solely to shake money down for its Wi-Fi patents, is targeting individual branches of hotel, coffee shops and restaurant chains. You, with your home Wi-Fi access point, may be next.

A new open source tool for Asterisk to take advantage of the speech-to-text engine now incorporated into Google’s Chrome browser was released this week by Lefteris Zafiris. You can read all about it and download a free copy of the code from GitHub. It works on any Asterisk-based system. So what now? Is it patent infringement to use Google’s publicly-accessible technology to build yourself an app that handles the obvious and now trivial tasks we’ve outlined above? Is it "legal" to use Google’s publicly-accessible speech-to-text engine to do things other than those that Google itself designed? Your guess is as good as mine. Unfortunately, most users aren’t lawyers and aren’t prepared to spend their life fortune litigating the legal nuances of prior use, obviousness, and whether a patent should be reexamined because it merely covered an idea.

For those that want to experiment at your own risk in this legal minefield, we’ve assembled two hours’ worth of publicly available information on the topic. It shows just how trivial it is to put these freely available components together to do literally hundreds of useful tasks. And when you have a few spare minutes, do us all a favor. Contact your Congressional representatives and urge them to put a stop to this nonsense and restore some sanity to the patent process. Little wonder that the United States has fewer and fewer students interested in pursuing a career in software development. That’s a very sad day for the U.S.A.

Originally published: Friday, January 13, 2012

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