Useless Patents That Impede Progress

Brent Ashley has posted some thoughts about patents and The Software Commons on his blog, following the news that NetObjects has a patent on WYSIWYG HTML editing. A few thoughts follow…

NetObjects is likely to go after large companies with large bank accounts and vast hordes of lawyers (eg, Microsoft) to try and collect on their new patents. Microsoft won’t just settle such a suit, because they have too much invested in WYSIWYG HTML (MS Word and FrontPage come to mind). They’d be a lot more likely to just buy NetObjects. The least costly solution, however, would be to dig up some prior art… and odds are that it exists.

Patents can certainly get in the way of The Software Commons coming into existence and growing. What if there was no large company with deep pockets getting sued? That’s where the Free Software Foundation would be very useful, because they may have resources to find prior art and present it in court. They’re like the ACLU for software. Even if you don’t think all software should be completely Free, you can still appreciate the stand that the FSF takes on protecting software freedom.

And, don’t forget, once the Commons is established, large businesses will have a stake in it and will care about its success. Think of how much luck a company like NetObjects would have against a coalition of companies like IBM, GM, Ford, Exxon, and Wal-Mart.
What if there is no prior art? I guess people will just have to get creative. Brent gave the excellent example of the LZW patent that Unisys had that covered GIF images. The open source community invented PNG which was free from patent control. A patent like “1-click purchasing” or “WYSIWYG HTML editing” may sound painfully broad, but crafty software developers will probably find a way around it. If the NetObjects patent actually holds up in court, you may find Flash becoming a lot more popular, as open developers start building WYSIWYG tools around a different format. Or, as in Brent’s example, maybe everyone will start using Rich Text Format instead of HTML.

Thankfully, the pace of innovation within the open source community is quite fast. “Release early, release often” is a common phrase among the developers. With luck, this attitude will produce a lot of innovation (and prior art) that will not get bogged down in court.