FYI: Why Bill Gates wants 3,000 new patents

Tue Aug 2 20:16:34 CEST 2005

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By Randall Stross
http://news.com.com/Why+Bill+Gates+wants+3%2C000+new+patents/2100-1008_3-5812318.html

Story last modified Sun Jul 31 08:15:00 PDT 2005

"EXCITING," "uninteresting" and "not exciting" don't seem like technical
terms, but they show up a lot in United States patent application No.
20,050,160,457, titled "Annotating Programs for Automatic Summary
Generation."

It seems to be about baseball. The inventors have apparently come up
with software that can detect the portions of a baseball broadcast that
contain what they call "excited speech," as well as hits (what I call
"excited ball") and automatically compile those portions into a
highlights reel.

If the patent is granted, after a review process that is likely to take
three years, it will be assigned to the inventors' employer, Microsoft.

  The staff of the United States Patent and Trademark Office has been
deluged with paperwork from Microsoft of late. It was one year ago that
the company's chairman, Bill Gates, announced plans to pick up the pace,
raising its goal of patent applications submitted annually to 3,000 from
2,000. The company is right on target.

It must feel like a bit of a stretch to come up with 60 fresh,
nonobvious patentable ideas week in, week out. Perhaps that is why this
summer's crop includes titles like "System and Method for Creating a
Note Related to a Phone Call " and "Adding and Removing White Space From
a Document."

I have not seen the software in use. But if I were in a position to make
a ruling, and even if I accepted the originality claim on its face, I
would process these swiftly: Rejected.

Microsoft's other pending applications--3,368 at last count--should
receive the same treatment. And while tidying up, let's also toss out
the 3,955 patents that Microsoft has already been issued.

Perhaps that is going too far. Certainly, we should go through the lot
and reinstate the occasional invention embodied in hardware. But patent
protection for software? No. Not for Microsoft, nor for anyone else.

Others share this conviction. "Abolishing software patents would be a
very good thing," says Daniel Ravicher, executive director of the Public
Patent Foundation, a nonprofit group in New York that challenges what it
calls "wrongly issued" patents. Ravicher, a patent lawyer himself, says
he believes that the current system actually impedes the advance of
software technology, at the same time that it works quite nicely to
enrich patent holders. That's not what the framers of the Constitution
wanted, he said.

Earlier this month, the European Parliament rejected a measure,
nicknamed the "software patent directive," that would have uniformly
removed restrictions on those patents among European Union members.

All software published in the United States is protected by strong
copyright and trademark protection. Microsoft Excel, for example, cannot
be copied, nor can its association with Microsoft be removed. But a
patent goes well beyond this. It protects even the underlying concepts
from being used by others--for 20 years.

As recently as the 1970s, software developers relied solely upon
copyrights and trademarks to protect their work. This turned out rather
well for Microsoft. Had Dan Bricklin, the creator of VisiCalc, the
spreadsheet that gave people a reason to buy a personal computer,
obtained a patent covering the program in 1979, Microsoft would not have
been able to bring out Excel until 1999. Nor would Word or PowerPoint
have appeared if the companies that had brought out predecessors
obtained patent protection for their programs.

Bricklin, who has started several software companies and defensively
acquired a few software patents along the way, says he, too, would cheer
the abolition of software patents, which he sees as the bane of small
software companies. "The number of patents you can run into with a small
product is immense," he said. As for Microsoft's aggressive accumulation
in recent years, he asked, "Isn't Microsoft the poster child of success
without software patents?"

So why didn't Bricklin file for a patent for VisiCalc in 1979? Patents
for software alone were not an option then. He consulted a patent
attorney who said that the application would have to present the
software within a machine and that the odds were long that the ploy
would succeed. The courts regarded software as merely a collection of
mathematical algorithms, tiny revelations of nature's secrets--not as an
invention, and thus not patentable.

The legal environment changed not because of new legislation, but by
accident. One important ruling here and another there, and without
anyone fully realizing it, a new intellectual-property reality had
evolved by the end of the 1980s. Now software could enjoy the
extraordinary protection of a patent, protection so powerful that Thomas
Jefferson believed that it should be granted in only a few select cases.

Making the best possible argument for Microsoft's newly acquired passion
for patents is a job that falls to Brad Smith, the company's senior vice
president and general counsel. Last week, we discussed the changing
legal landscape in the 1990s. Microsoft had not taken an interest in
patents in its early years because, as Smith said, "We thought we could
rely on copyright." The courts changed the rules, and Microsoft had to
respond like everyone else.

Why did Microsoft increase its patent-application target so sharply just
last year?

"We realized we were underpatenting," Smith explained. The company had
seen studies showing that other information technology companies filed
about two patents for every $1 million spent on research and
development. If Microsoft was spending $6 billion to $7.5 billion
annually on its R&D, it would need to file at least 3,000 applications
to keep up with the Joneses.

That sounds perfectly innocuous. The really interesting comparisons,
though, are found not among software companies, but between software
companies and pharmaceutical companies. Pharma is lucky to land a single
patent after placing a multihundred-million-dollar bet and waiting
patiently 10 years for it to play out. Mark H. Webbink, the deputy
general counsel of Red Hat, a Linux and open-source distributor, said it
was ridiculous for a software company to grab identical protection for
work entailing relatively minuscule investment and trivial claims. He
said of current software patents, "To give 20 years of protection does
not help innovation."

If Congress passed legislation that strengthened and expanded copyright
protection to include design elements as well as software's source code,
formalizing the way the courts interpreted the law in the 1970s, we
could bring an end to software patents and this short, unhappy blip in
our patent system's time line.

Eliminating software patents would give Microsoft another chance to
repair its relationship with open-source users. Recently, the company
has stooped to what can only be labeled fear-mongering, telling its
customers who may be tempted to switch to open-source alternatives to
think twice before leaving Microsoft's protective awning.

Last year at a public briefing, Kevin R. Johnson, Microsoft's group vice
president for worldwide sales, spoke pointedly of "intellectual property
risk" that corporate customers should take into account when comparing
software vendors. On the one side, Microsoft has an overflowing war
chest and bulging patent portfolio, ready to fight--or cross-license
with--any plaintiff who accuses it of patent infringement. On the other
are the open-source developers, without war chest, without patents of
their own to use as bargaining chips and without the financial means to
indemnify their customers.

What would Jefferson think if he were around to visit Microsoft's
campus, seeing software patents stacked like pyramids of cannonballs?

Randall Stross is a historian and author based in Silicon Valley.
E-mail: ddomain at nytimes.com.

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