In an interview with the San Francisco Chronicle, Google patent lawyer Tim Porter says that the patent system itself is broken thanks to a patent office that granted protection to "broad, vague or unoriginal ideas masquerading as inventions." Now Microsoft is reportedly abusing that broken system by stockpiling dubious patents and "taxing" those supplying Google's Android operating system.
"When their products stop succeeding in the marketplace, when they get marginalized, as is happening now with Android, they use the large patent portfolio they've built up to get revenue from the success of other companies' products," Porter said, also pointing out that Microsoft used a similar tactic with Linux.
The Chronicle opens the interview with a short history of Google's battle with Microsoft, Apple and Oracle who stands firm with a claim that Android was built using technology protected by their patents. Oracle has sued Google outright while Apple and Microsoft have attacked companies using the operating system in question. The major players have even scrambled to build their patent portfolios, eventually pushing Google into claiming that competitors were purposely banding together to "tax" the highly popular Android.
But as previously stated, Porter blames the current firepower against Android on the patent office itself. "I think what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax," he said. "Things that seemed obvious made it through the office until 2007, when the Supreme Court finally said that the patent examiners could use common sense."
"Patents were written in a way that was vague and overly broad," he added. "(Companies are) trying to claim something that's really an idea (which isn't patentable). There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don't even understand. They're being used to hinder innovation or skim revenue off the top of a successful product."
According to Porter, the legal system should say you shouldn't patent something that's obvious. There also needs to be real standards for what is patentable. Even more, patents are supposedly a form of property -- if there aren't clear boundaries, then the "property" system doesn't work. Damages, injunctions and remedies also should be proportional to the value of the invention, not the "astronomical damages" Apple and Microsoft are currently seeking in court.
Porter also goes on to debunk Microsoft's patent attorney Horacio Gutiérrez's statement that the current swarm of lawsuits is an unfortunate-but-normal historic event that follows "disruptive" technologies. "Microsoft was our age when it got its first software patent," he said. "I don't think they experienced this kind of litigation in a period when they were disrupting the established order. So I don't think it's historically inevitable."
"The period of intense patent assertions (against things like the steam engine) resulted in decades-long periods of stagnation," he added. "Innovation only took off when the patents expired."
To read the full interview, head here.