Software Patents for the Rest of Us

Posted on December 7, 2013

Say you’re an aspiring writer. You’ve toiled endless hours working on your book, telling the tale of a lieutenant and his betrayal of his general, picking each word carefully, giving your sentences that twist, perfectly capturing the image of the spring vista outside your window, the backdrop of your epic. You publish your book and immediately make it onto the New York Times bestseller list. Time to sit back and relax…

One day, you open your mail and see a legal notice1. Another writer, someone named William Shakespeare, says he has a patent on stories about lieutenants who betray their masters. That’s ridiculous, you say. Plots are ideas and that Shakespeare can’t patent them!2

What are your options?

Well, you remember reading a story similar to Shakespeare’s, published long before the Bard received his patent. Perhaps you could challenge him in court and invalidate the patent? How much would that cost?

$500,000—in legal fees3. That’s not counting the settlement you’d have to pay if you lose.

Pick yourself up off that floor. There’s more to that legal notice.

But, you whine, how am I supposed to know?

Good question. Here’s another one: what’s the difference between a patent on “a means of communicating a story in which an official betrays his superior” and a patent on “a method of communicating a tale about the betrayal of a general by a subordinate”? How are you supposed to search for patents that could cover your story, given that you could word and reword and reword the same idea multiple ways? Or that you could have multiple slightly different ideas that still cover your story?

And let’s consider what Shakespeare could demand from you. He could ask that you license his patent—in effect, that you pay him money to use his “invention”. He could ask for an injunction—that you censor your book and not publish or sell it. Or you could refuse, and rewrite your book to avoid his patent.

This is still ridiculous. You can’t actually patent stories! And indeed you can’t. But this is just an allegory—now consider this real-life example.

Now, you are Fred Chang, CEO of, a successful online electronics retailer. And how do people buy from your store? They put products in a shopping cart, of course. Just like every other site, just like they do in the physical world.

And one day you (i.e., some drone in your legal office) receive a legal notice from Soverain Software. They claim to own the idea of a shopping cart. Of course, they refer to it as a “network sales system”, and want their rightful share of your profits. Amazon has already agreed to pay $40 million. Soverain wants $34 million from you. Every other company targeted has agreed to settle. What would you do in Newegg’s shoes?

In the case of Newegg, they decided to fight. Newegg lost the first trial. Indeed, the judge didn’t even let the jury hear their argument that the patent was invalid! Luckily, upon appeal, the judgement was overruled and the patent declared invalid. A good ending for Newegg, and an example of justice: a predatory company that makes no products, a patent troll, has its patent invalidated.

But in the real world, not every story has a happy ending. And not every aggressor is an obvious troll. Let’s look at Samsung vs Apple, the two titans on the sides of the Android phone vs iPhone battle.

In 2011, Apple filed suit against Samsung, claiming that Samsung’s products infringed upon Apple patents for such features as double-tap-to-zoom and pinch-to-zoom, seeking $2.75 billion in damages4. Apple was originally awarded $1.05 billion, still a staggering sum, and of course Samsung has appealed, the award has been changed, etc. As of this writing, the retrial is still dragging on. Samsung could easily see its products banned from the US market, leaving consumers with less competition in the smartphone market. And what products remain could face price increases, as manufacturers must then license Apple’s patents or face litigation. In fact, HTC has already agreed to license from Apple, under unknown but likely onerous terms.

What is the purpose of patents? To protect inventions from copycats. Is an online shopping cart an invention? (Yes, said Soverain.) Is slide-to-unlock (warning: Internet meme) an invention? (Yes, says Apple.) Is a little tray that holds all your notifications an invention? (Yes, says Google.)

But are these inventions? Or are they ideas?

This is the world of software patents. Lawsuits are only increasing, the number of software patents is steadily climbing, and the damages are now in the billions. Is there a solution? Any number of academics, policymakers, and others have proposed reforms, laws, bans. But ultimately, it remains up to us—the consumers—to make this problem a priority, not just an abstruse debate.

For more information, check out the End Software Patents wiki.

  1. This analogy comes by way of Richard Stallman, by the way.

  2. See the USPTO’s website: “A patent cannot be obtained upon a mere idea or suggestion.”

  3. “The Private Costs of Patent Litigation” (2008), page 16.

  4. See, for instance, the Huffington Post story.

comments powered by Disqus