There’s a lot of dour talk about the “Death of Software Innovation” these
days, as patent lawsuits hit the court system one after another. But is this
litigation mentality really the result of an old-fashioned and obsolete
government agency that’s stifling new software innovation?
Not quite. And although today’s raft of companies suing other companies over
intellectual property rights may give the impression that creative thought
is getting muzzled, many industry experts agree that software innovation is
alive and well.
Software patent critics point to an overburdened U.S.
Patent & Trademark Office (USPTO) that is under-qualified to
competently handle the number of new patents and determine whether they are
original, non-obvious inventions.
But critics were saying the same thing 120 years ago. Thomas Edison, for example,
is one of the single-biggest individual patent holders in the U.S. to this day, with 1,093.
This useful invention was the subject of similar patent issues that plague tech today.
A swirl of controversy surrounded his light bulb patent, which the USPTO awarded him
Since then, patents have been met with their share of court cases, said Nick
Godici, USPTO commissioner of patents.
“Every invention that’s worth a lot of money is going to come under scrutiny,
and there’s going to be two sides of the coin and so on,” he said. “The
Wright brothers’ patent went through all kinds of litigation before it was
finally decided. There’s always a challenge when there’s high value at
stake, and I think that’s as true today as it was yesterday.”
Some marquee patent lawsuits came to a head this year, most recently Sun v.
Kodak, which wasn’t really anything more than a contract dispute. Kodak successfully
argued Sun Microsystems
had improperly used and
distributed three of its object management patents in the Java language.
Sun was more than happy to settle out of court
for $92 million rather than face an even bigger fine.
Others aren’t as easily dismissed. Eolas Technologies in its case
against Microsoft, for instance, claimed its patents on Web page plug-ins — an
application that runs outside the original HTML-formatted page, like Java
applets or ActiveX controls — were violated in Internet Explorer (IE).
Patent examiners at the USPTO have found the original HTML specification by
author Sir Tim Berners-Lee invalidated Eolas’ claims.
Of the 170,000 to 180,000 patent claims
that make it to the USPTO each year, only 1 percent see the
court room, Godici said. Of that 1 percent, only one in seven make it to a
final judgment where 65 percent of the patents are upheld.
If patents aren’t the reason for a perceived dearth of new innovations in
software, what is?
There’s certainly something to be said about today’s software having the look and feel of point-release software
— small, incremental improvements to an original good software product —
repackaged and re-marketed to the public every year or so.
Bruce Perens, a noted critic on software patents, doesn’t think the low
number of lawsuits translates into a success story. In his argument,
“Software Patents vs. Free Software,” he describes software companies
amassing patent rights defensively, to be used in cross-licensing deals so
one side doesn’t sue the other over patented technology.
The net effect of this Cold War-style detente is that these patents block
free software development, Perens said, and if patent holders decide to
file infringement lawsuits against free software development, notably
GNU/Linux, those individuals won’t have the financial means to defend
themselves. That means no more software innovation.
“Today, they are a nuisance,” he said. “Tomorrow they could be much more.”
Software for the Masses
New, innovative software is out there, said Danny Yellin, IBM
research director of software research, and you’re watching
it, touching it and interacting with it every day.
The initial excitement and brain power was created by software developers, and it’s
slowly leaking into other industries — entertainment, manufacturing,
financial services, retail — spawning new innovations along the way.
To see where great new ideas are happening, Yellin said, people need to look
at the latest Pixar movie, Web services,
aspect-oriented programming or RFID tagging technology.
“We’re looking in the wrong places; I think you find whole industries
changing due to software,” he said. “Look at the file sharing of music.
You got the legal issues [but] Apple reinvented itself with the iPod. And now
we have Microsoft and others copying it all over the place, changing the
Maybe it’s because we’re so used to the latest and greatest that any new
software product that doesn’t redefine the industry is overlooked. Or
maybe, as Yellin suggests, we’re expecting the “next great thing” to
suddenly jump out at us while we’re not looking.
“If you look at the Internet, it came out of years and years of research,
starting off with DARPA [Defense Advanced Research Projects Agency] programs back in the 70s and 80s,”
he said. “It took a long time to
get to the Internet. But people saw that as this stellar thing
that just kind of took off immediately, and they’re saying, ‘where’s that
next thing coming?'”
Garbage In, Garbage Out
Others think the lack of software innovation comes from within. You need
only look at the seemingly weekly patch updates from companies like Microsoft to understand
what critics of quality software code are talking about, though the Redmond
giant is not the only guilty party.
It’s an area to which software vendors are devoting more and more resources,
like Borland’s Optimizeit suite for enterprise, J2EE-based
applications and IBM’s Rational line.
Tools aren’t enough when
the people using them aren’t applying engineering principles to their work
to create better software, according to Leon Kappelman, director of the
Information Systems Research Center at the University of North Texas.
This, more than any other reason, he said, is
why people think software innovation has gone by the wayside.
“It’s not a problem of innovation; we’ve had some great innovations that we
totally ignored,” Kappelman continued. “It seems too many of us want to be artists
rather than professional engineers. But we’re building engineering products
that lives often depend on, and I don’t think we take it seriously enough.”
No matter how you look at it, software innovation and its patents
will continue to be an issue within the software industry. But whether the
patents themselves will lead to new software developed from the minds of a
small number of companies or from a global community remains to be seen.