A small victory in the fight against "patent ambushes"

It’s a small step, but a step in the right direction: European Commissioner for Competition, former member of the Dutch parliament Neelie Kroes, has apparently ordered the members of an influential standards body, ETSI, to make sure that its standards do not fall victim to the threat of “patent ambush”. I’m still looking for more details on this; the ETSI website does not have anything yet, so we’ll need to see how far this goes.

“Patent ambush” is when a company cooperates with the development of an industry standard, or simply stands by while others are developing the standard, without divulging that it holds patents covering the standard. Then, after the standard has been accepted and many different parties have become firmly dependent on it: Ta-daah! It’s paytime!

Probably the most famous example of this is the Unisys GIF patent, in which Unisys stood by for seven years while the GIF image format became the de-facto standard for image exchange on the Web, and then once it had become essentially impossible to switch to another format, they announced that they held a patent on the compression algorithm, so everybody please either pay up or remove GIF support from you graphics application (thus making it unsellable).

Patent ambush is hardly the only common abuse of software patents. Other well-known tricks are:

• Patenting the problem rather than the solution. For example, claiming a patent on the generic concept of selling music over the Internet, rather than patenting a specific innovative technical solution to that problem. Except that there is no technical problem with selling music over the Internet. Which is why it should not be patentable. Likewise, if you’ve invented a new kind of Dutch-language grammar checker, that’s great, but it should not give you the right to sue any grammar checker produced afterwards just because it works somewhat similarly.
• Patenting existing technology. This one is even more blatant. Like the various attempts to patent, basically, the Internet, during the late 1990’s.
• Patenting things that are obvious to anybody working in the field. The classic example of this is the guy who, during the first publicity about the “Year 2000 problem”, patented the idea of “windowing”. For example, if you have a customer database which uses two-digit fields for storing customers’ birth dates, and for technical reasons you can’t easily increase the field size, you can declare that the numbers 20-99 map to 1920 – 1999, and numbers 00-19 map to 2000-2019. That way, you have solved the Y2K issue, and by the time people born in 2020 start becoming customers, you have probably replaced the software anyway. The problem with this patent is that if you put a couple of average programmers in a room and ask them to come up with a solution to this problem, they are going to come up with the windowing idea within ten minutes, max. Patents should be awarded to cover the investment needed to invent something, not to reward someone’s clever idea in the shower.
• Using patents to fight interoperability. Selling value-adding add-ons for other people’s products is a time-honoured practice. I can get hands-free kits for my Nokia phone from people other than Nokia, and I can get LED-based replacement heads for Maglite flash-lights from people other than Maglite. This is not unfair competition: Nokia is quite free to produce its own hands-free kit and compete on the open market, and those third-party flashlight heads would not do any business if Maglite would finally enter the 21st century and start selling the bloody things themselves. With software, it should be the same: A given word processor or photo-editing application should succeed or fail on its own merits, not because its file format happens to be the de-facto standard and no other software can handle it. Yet an increasingly popular practice is to patent your file format (even if it uses no particularly inventive techniques) and then use the law, rather than technical superiority, to lock out the competition.