The Flap Over Software Patents
Before we go any further, we should be clear. There is no such thing as a software patent in U.S. patent law. In fact, computer software - the computer code written in a particular computer language - is not patentable. You can copyright it, but you can’t patent it.
The term “software patent” typically describes a patent granted for an invention that is implemented by a computer. The fact that computer software might be used in the invention is not really relevant to whether the invention qualifies for a patent or not. But when a valid invention is ultimately implemented by software, it’s commonly called a software patent.
Examples of Software Patents
One-Click Ordering System (Amazon)
Patent number US5960411 was granted in 1999 to Amazon for a “method and system for placing a purchase order via a communications network.” This is popularly known as the “one-click” ordering system. The patent was granted not on the basis of the software, but on the basis of a unique “process.” Patent law specifically allows novel, new, non-obvious processes to be patented.
Affiliate Marketing Program (Amazon)
In 2000, Amazon was granted patent number US6029141 for an “Internet-based customer referral system” now commonly referred to as the affiliate marketing program. Again, the patent was granted for a process, not for the software that implements it.
GIF File Compression Technique (Unisys)
CompuServe created the GIF file format in 1987, unwittingly using a patented compression algorithm (patent number US4558302: “High speed data compression and decompression apparatus and method”) owned by Unisys. CompuServe eventually had to license from Unisys the use of the algorithm, called the LZW compression technique. The LZW patent was granted in 1985 and expired twenty years after the original application, in 2003.
Software Patent Controversy
While each of the above are examples of what are considered software patents, each one of them has been embroiled in controversy for various reasons.
Some Say It Was Obvious
An important requirement for a patent is that the invention be non-obvious. An invention may be considered obvious if anyone else experienced in the art and considering approaches to the same problem would probably have created the same solution. Many in the industry cried foul when the Amazon “one-click” patent was announced. Given the well-known problems with Internet shopping carts, they say the one-click approach was the obvious answer.
Soon after the Amazon patent was granted, Amazon sued Barnes and Noble for using Amazon’s protected method on BarnesandNoble.com. Amazon won, and Barnes and Noble had to disable its one-click purchase feature during the height of the Christmas shopping season.
Despite Amazon’s publicly stated position that it will only enforce its one-click patent rights against large direct competitors, the controversy still exists. Many people think the patent should be invalidated because of what they believe is the “obviousness” of it.
It Wasn’t That Novel
We don’t want to seem to be picking on Amazon, but the subjects of their software patents are much more familiar than some of the others that are also embroiled in the debate.
Take the affiliate marketing patent, for example. Amazon’s patent was for a method of placing an ad with a hyperlink on an associate’s website, such that when the associate’s visitor clicked on the link and bought something on the Amazon site, the referring associate would be known, and the commission would be automatically calculated and credited to the associate.
Critics contend that when Amazon submitted its patent application in 1997, websites such as PC Flowers & Gifts, KBKids and Autoweb (among others) had already implemented similar affiliate marketing programs. Further, affiliate marketing was actually pioneered by adult websites well before 1996. Therefore, Amazon’s “invention” was not all that novel. Since an invention must be novel to receive a patent, critics claim this patent should not have been granted.
Users Revolt
In another odd twist, the patent on the LZW compression algorithm used in GIF files led to a brief period of chaos in the software and Internet community.
Though the patent on the LZW compression method was originally granted to the inventor, Terry Welch, it was subsequently assigned to his employer, and through a series of mergers ultimately became the property of Unisys. Welch published a paper on the algorithm in 1984 without mentioning he had applied for a patent on it in 1983. Soon afterward, several software developers began using the algorithm in their various projects.
Famously, CompuServe’s developers used LZW as the basis of its GIF file compression technique without realizing it was patented. Because CompuServe promoted free use of the GIF format, it’s popularity spread quickly.
GIF’s reliance on the patented LZW method didn’t become clear to CompuServe and Unisys until the late 1980s, and it wasn’t until 1994 that CompuServe ultimately secured a license to legally use LZW. By that time, however, many scores of other software companies had been busily embedding GIF functionality in their products with CompuServe’s approval. In the end, however, their usage was not covered by CompuServe’s license.
As rumors began circulating about patent infringement suits and Unisys issued conflicting information on licensing, software companies began abandoning GIF support in their products. The situation devolved into seeming chaos in some corners as many users wrongly believed they could be sued for even having GIF images on their servers and began deleting them en masse, and BurnAllGIFs.org was born.
The debacle served as another rallying point for those who believe software patents run counter to the patent system’s primary purpose, which is to stimulate innovation, commerce and the common good.
Related Articles
- What You Should Know About Software Patents
- Internet Trademark Infringement Cases
- The Web 2.0 Service Mark Controversy
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