No Justice in McAfee Patent

Some dignified celebration would have been fair enough, but the crowing emanating from‘s headquarters last Monday took on an unseemly tone.

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The cause was the granting of a patent by the U.S. authorities for the security ASP’s remote PC management technology. The news capped what has been an excellent six months for McAfee, whose stock has risen almost 900 percent since its January low of $1.81 — a performance that is the inverse of what we have come to expect from dot-com stocks of late. So some jubilation was only natural.

But McAfee’s publicity machine went into overdrive for the announcement, portraying it as if the U.S. Patent and Trademark Office had just handed McAfee the rights to the very concept of software-as-a-service (SaaS). “[McAfee CEO] Srivats Sampath and his team hold a patent on the future of the Internet,” declared one message.

In fact, the patent refers only to its method for delivering and executing certain services to a PC over the Internet, including system security, management and optimization. As such, it hardly covers the full panoply of SaaS. But the grant of the patent still raises potentially disturbing issues.

VCs Flame Patent Flame
In recent years, the granting of U.S. technology patents has become big business, fueled by the massive tide of venture capital funding. Since a central tenet of VC philosophy is that all successful technology ventures are founded on proprietary ownership of a unique and fully defensible intellectual asset, huge funds have flowed into the coffers of patent lawyers.

The unfortunate result has been that the sheer tide of patent applications has started to wear down the U.S. authorities’ common sense of where natural justice actually lies. Traditionally, intellectual property law draws a clear distinction between concept and execution. Since human thought is free, natural justice holds that concepts can never be proprietary. However, capitalism demands that creative effort must have its price, and therefore execution is deemed to be proprietary.

The difficulty when it comes to technology — especially at the software level — is that there is a fuzzy line between concept and execution. The difference between the two is often a matter of judgement rather than fact. Thus justice in patent matters frequently relies on the common sense of the judiciary weighing up the arguments of the lawyers presenting before them — a somewhat hit-and-miss mechanism for delivering sound judgements at the best of times, but nevertheless the best that we have available right now.

The past few years have seen a perceptible shift in favor of protecting intellectual property at the expense of the free application of concepts. In the case of McAfee’s patent number 6,266,774, there is some justifiable concern that it could be held to govern the use of remotely managed browser scripts to automatically perform tasks on a connected desktop PC.

To a layman like me, that sounds like a concept — an idea that I might deploy myself to implement some new Web services technology that I have designed, and one that without question predates McAfee’s use of the idea specifically to deploy and remotely control PC utility software.

Dangers in the Patents
The dangers of such a broad interpretation of patent law holding sway are twofold.

One danger is that it may stifle innovation, by discouraging innovators from exploring avenues that they believe may infringe already-existing patents. By overzealously protecting the rights of existing patent-holders, the U.S. authorities may inadvertently disadvantage its own entrepreneurs in comparison to overseas competitors, many of whom operate in jurisdictions where U.S. patent law holds a far weaker influence.

The second danger is that corporations may ultimately provoke a backlash if they become excessively jealous of their intellectual property rights. The rise of open source in recent years is more than just a movement. It also expresses an instinctive social reaction against corporate ownership of intellectual property, based on a sense that certain forms of knowledge should not be proprietary but should be shared for the common good.

If powerful corporations overstep the mark in protecting their intellectual property, popular opinion may ultimately force the authorities to weaken the very laws that all of us now depend on to protect our most valuable intellectual assets.

This review of the week’s news highlights is by founder and consulting analyst Phil Wainewright. A comprehensive news digest is published every month in the ASP News Review newsletter, available exclusively to subscribers.

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