Software patents come home to roost

Most people have heard of online trolls, people who take joy in being rude and sometimes even abusive. You might not have heard of patent trolls, but they are wreaking havoc in the software business, and some developers are threatening to quit the US unless patent laws are reformed.

Patent trolls are companies that collect patents and aggressively pursue anyone they think has infringed them. Often, patent trolls have no intention of developing the technology outlined in the patents. Instead, they act opportunistically to maximise the income from their patent portfolio.

Mumbai-based Kootol Software Ltd has given notice to over 32 companies whom it claims has infringed on its US patent for “messaging, publication and real time searching technology”. Amongst the accused are giants Microsoft, Google, Apple, Amazon and IBM, as well as social media sites Twitter, LinkedIn, Facebook and Foursquare.

More from News & Analysis

What is the US HIRE Bill and why is India’s $250-billion IT sector worried? Is the internet dead? What's this theory that OpenAI's Sam Altman says might be true?

Meantime, American company Lodsys Llc is going after apps developers, claiming that its US patent on in-app transactions has been infringed. Lodsys alleges that the “violation of two of its patents occurs in not just iPhone apps, but Android and Mac apps as well.” Amongst the defendants are Quickoffice, Illusion Labs and The Iconfactory, who is also accused of infringement by Kootol.

[caption id=“attachment_46845” align=“alignleft” width=“380” caption=“Since patent rolls are US patents any developer selling software in the States is at risk of being caught up in a suit. Photo by opensourceway/Flickr”]  [/caption]

Patent trolls are nothing new. The US patent system especially is notorious for granting overly-broad patents and ignoring prior art, examples of the same sort of technology that predate the patent claim, which should have made a patent claim invalid. This lack of rigour encourages companies to play fast and loose with the system.

Ten years ago, UK company BT claimed to have patented the hyperlink and tried to sue Prodigy Communications for unpaid licence fees. Although ultimately it lost its case, it remains a good example of the lengths companies will go to if they think they can wring some money out of a patent.

What is new, however, is who’s being sued. In the past, patent trolls would follow the money, suing only large corporations with deep pockets. But Lodsys and Kootol are also targeting small developers who can’t afford lawyers and who are much more likely to settle out of court, saving themselves and the trolls expensive legal fees.

Because these are US patents, any developer selling software in the States is at risk of being caught up in a suit. Any developer with an app in the US Apple or Android app stores is a walking target and many now feel that the risk is too high.

Fraser Speirs, a UK-based developer, said on Twitter that he was “starting to get seriously concerned about my future as a software developer due to these patent issues”. The Guardian reports that other UK developers are fearful: Simon Maddox has withdrawn all his apps from US app stores whilst Shaun Austin said that “selling software in the US has already reached the non-viable tipping point”.

Activists have been campaigning against software patents for years, claiming that they hurt innovation. Their case is now being made in the worst way possible.

“Companies like Lodsys are taking advantage of patent law to harass small developers into paying up hush-money to keep from a time- and cash-consuming legal nightmares,” said Steve Streza, founder of Mustacheware.

Although India quashed the Patents Ordinance of 2004 which allowed the patenting of software, having local protection for software is not enough. Software is a global industry and the US remains a lucrative market for Indian developers. But the cold tentacles of foreign law can easily snake back around the world to throttle local business. Kootol, after all, isn’t just going after US and UK developers but has also targeted Bharti Airtel and Webaroo Technology.

And that’s the trouble with the broken US patent system: Its repercussions are global.