Are software patents becoming too evil to be a necessary evil?
INTRO
Patent law has a long and somewhat interesting history in the United States. Its full of stories of david vs goliath, companies finding ways to cheat the system, and revolutionary ideas. Software patents are relatively new to this history, with the ability to patent software only being introduced in the mid 90s. Since then the number of software patents has exploded in the U.S. In the past couple years the rapidly escalating mobile technology sector (primarily consisting of smartphones and tablets, but also laptops, netbooks, mp3 players, and other mobile devices) has fallen into a habit of using patents as a weapon in the fiercely combated market. The "smartphone wars" are an ongoing series of patent infringement disputes between big players like Apple, Microsoft, Samsung, LG, and HTC. Most of the disputes are over features anybody can recognize such as "slide to unlock" or multi-touch. Nokia fired the first shot against Apple in 2009, who has fired back against Nokia and a number of Android phone manufacturers (primarily Motorola, Samsung, and HTC). These companies then all retaliated and the number of disputes have skyrocketed.
The goal of these disputes is to have a legal entity, not always in the U.S., block sales of competing products in whatever nation the dispute has been filed. Licensing of patents and damages-seeking are becoming increasingly rare. There have been multiple instances of courts granting preliminary injunctions (the product is blocked from sale in the country BEFORE infringement is proven, at the discretion of the court). This has brought a bit of a focus on the weapon of this war: the software patent, and its flaws.
THE PROBLEMS
Legitimacy of Patents
The sheer volume of software patents filed each year means the USPTO (United States Patent and Trademark office) cannot reasonably do the necessary vetting of each patent before deciding whether or not to approve it. This has resulted in a number of patents being granted for software that has already been implemented. Patents with vague terminology and abundant legalese are also being granted when they clearly cover too much. Both of these mean there are a number of patents that shouldn't have been granted. When these patents end up as part of a dispute it wastes large amounts of court time and legal fees trying to have the patent(s) proven illegitimate.
Patents of Nonexistent Products
Since a software patent doesn't take into consideration a physical product they are granted without the need of a working prototype, or any indication the patenting company will actually produce the product. This results in two pretty major issues. The first is that the patenting company can use software patents to pseudo-patent an actual product. Many software patents cover the essential software of a product. For example a company would likely be granted a patent covering a user interface for "smart" toaster. The patent could have such things as "A system for using a touch screen as a method to select from predetermined or user specified levels of time to operate a device". This would lock down ANY toaster that would use a touch screen. An entire product category has just been locked down thanks to one broad software patent. The second is that companies will often patent an idea they have no intention of using, so that when another company tries to actually produce a product they are forced to pay royalties. This is most commonly referred to as 'patent-trolling'.
"Use-Cases"
The smart toaster example above is what is sometimes referred to as a use-case. The patent isn't for any specific software, but rather how it COULD be implemented. This causes a problem because if another company tires to use a similar method, even to accomplish a different end goal, they would be infringing. The toaster example could be applied to an option on a smart phone that lets you keep the screen on for an amount of time. Since the 'device' or its function is not described in greater detail in the patent it can theoretically be used here too, even though the goal is completely different from what the original intention was. Patents like these are often proven invalid in court, but at great cost, meaning smaller companies may lack the resources to defend against bullies.
EFFECTS ON YOU
As a consumer we like choice. We want a dozen companies competing for our money, forcing them to make the best product possible. If the companies can use patents to limit competition beyond reason we lose choice and companies are less pressed to create great products. specifically the trend of blocking the sale of products over seeking royalties has a huge threat on consumer choice, especially if they are being blocked before infringement is proven. Patents are necessary as they encourage companies to create new or better things to put them ahead of them competition. The current system is broken and needs to be remedied to protect companies' and consumers' rights. There are many ideas on how this should be done but I won't list them here as my intention is to simply present the issue.
