The second reason programmers never refer to software patents is that they're told never to do so. Patent law allows for triple damages if patent infringement is found to be willful. Looking at patents is as good a proof of willfulness as you can get. Every company I've ever visited has told its programmers to stay well clear of reading patents.
The effect of both of these is to invert the intent of the Copyright Clause of the U. S. Constitution, which allows the granting of copyrights and patents "to promote the Progress of Science and useful Arts." Rather than promoting progress, software patents actually provide a way to inhibit progress by equipping companies with a powerful, unavoidable stealth weapon with which to frustrate their competitors and chill competitive innovation. Consider some examples:
- Yahoo is suing Facebook for patent infringement using patents that, according to developers who were involved, protect obvious ideas. It's a line VC Fred Wilson says the company should not have crossed, breaking an unwritten rule that "Web companies don't sue each other over their bogus patent portfolios." There may have been bad blood, as Om Malik says, and the basic reasoning appears to have been to reverse a competitive imbalance.
- Honeywell attacked Nest, an innovative startup with a smart and networked thermostat for the home, despite not addressing that market itself.
- As I wrote last week, open source patent defense group Open Invention Network (OIN) recently expanded its patent protection for Linux. Good news, spoiled by the discovery that founder members Sony and Phillips carved out exceptions so that they didn't face competition from Linux in their consumer products.
Software patents are thus bad news for most innovators in the software industry. The Electronic Frontier Foundation (EFF) has an excellent summary illustration of the problem.
I'm reminded of a case back in my days at Sun. Kodak was first an early investor in Sun, then a customer. But goodwill vaporized in 2004 when Kodak sued Sun for patent infringement. It wasn't just Sun. With its business starting to fail in the heat of competition from a digital camera market it had foreseen but failed to exploit, Kodak used a patent obtained from Wang to pursue every maker of object-oriented technology in the computer industry. Kodak forced out-of-court settlements in most cases (including, eventually, Sun), but the money did it no good.