Answer Guy Central

I’ve weighed in with my opinion on patents—particularly software patents—a few times. For the most part, I think software patents are a very bad idea, because they describe process, and process can’t be patented.

Unless, of course, it can be.

“The Facebook Patent” (7,669,123) is one example of a patent that describes a process, but no thing.  Amazon Patent 7,739,139 is even worse in this regard. Both talk about how something works, but don’t actually describe anything that’s been “created” other than an idea. Ideas can’t be patented. Business Process therefore can’t be patented either.

Unless, of course, it can be.

Yesterday, The United States Supreme Court ruled that a Business Process can in fact be patented, but that it needs to include as part of the business process, a machine. Don’t try to understand what the word “machine” means; your head will explode.

I suppose this makes sense in its way; if you create a machine that does something unique (patentable) you should also be able to apply for and receive a patent on the way the machine gets used (the business process). But the Supreme Court, in ruling that to be the case, was ambiguous because they failed to specify what a machine is. Which of course makes sense (see previous caveat about exploding heads).

Which brings me back to where this started: software patents are a very bad idea. Or am I wrong?

Remember back in February when Facebook was awarded United States Patent 7669123 for Social Networking? Remember how little sense that made? Well, our friends at the United States Patents and Trademarks Office have set the bar for stupidity even higher. Friends, I give you USPTO example # 7,739,139 of not understanding what a patent is, or even what a patent is supposed to be for.

Let’s start with the basics. Again. In general, software patents are a very bad idea. The say almost nothing and stifle rather than encourage innovation and development. They don’t generally describe anything unique, which is supposed to be a tenet of what patents are for. Amazon 7739139 is no exception, and in describing something so obvious 7739139 is just . . . well, judge for yourself:

To start, let me state again that I’m not an attorney. But I’ve dealt with Intellectual Property for a very long time, successfully defended against a trademark infringement claim over my software Uninstall for Windows, and advise companies on Intellectual Property. From a layperson’s perspective, I get this stuff.

This week the good folks at Amazon.com received US Patent 7,739,139. And I’m flabbergasted. As I told you when Facebook received their Patent for Social Networking, patents and the applications filed for them are supposed to describe something unique, and as software is mostly a representation of an idea rather than a thing it shouldn’t generally be patentable at all.

And Amazon’s new patent 7739139 describes . . . computer networks. Or Facebook. Or nothing at all.

Amazon’s rationale behind the filing for  7,739,139  is that an Amazon-owned company called PlanetAll was the “first” social network. It’s an interesting argument, and might even go some way to counteract the fact that the filing for 7,739,139 happened years after Facebook’s patent filings or even their existence.

But 7,739,139 doesn’t describe anything tangible. In describing social networking in their abstract for 7,739,139 Amazon has drawn a picture that could represent any computer network.

When Facebook got their social networking patent I was at least able to give them credit for attempting to describe something. 7,739,139 ‘s application doesn’t really even go that far.

I’ve said this before: I don’t know whether I’m more upset that the USPTO has misunderstood the very idea of what a patent is, or that Amazon, with 7,739,139 in hand, is likely to start suing any and everyone who runs a social network—which is one very large pool of people and companies.

If you’re at all concerned about this—and you should be—I implore you to contact the Office of Patents and Trademarks to get patent 7,739,139 invalidated. And if you’re MySpace, Twitter, or another social network and you don’t make big noise about this, well, enjoy the next fifteen years in court because somehow Amazon managed to get 7,739,139 pushed through USPTO in just two years.

Wouldn’t it be great if software was free? Heck, wouldn’t it be great if everything was free?

And a better question: am I talking about “free of charge”, or walking a “Free to Be You and Me” metaphor? Dries Buytaert, the founder of Drupal, thinks software should be free.

Since Mr. Buytaert is in the software business I presume he doesn’t mean that literally. And wow . . . imagine if he did! The software patent question we had a chance to look at yesterday when Apple sued HTC and last week when Facebook somehow won the ridiculous patent 7,669,123 just wouldn’t matter.

What Mr. Buytaert seems to mean is that software itself has no value and so shouldn’t be used as a weapon against the people who use it. In fact, Drupal is free, and you can use it on your web site without paying anyone a penny. On the other hand, if you love Drupal but would like Mr. Buytaert’s company to host it for you, or provide consulting in how to use it best, that’s not free. WordPress, a much more popular content management system, works the same way.

For that matter, Answer Guy Central follows a similar model. There’s lots of stuff we give away, including the words you’re reading right now, and the Answer Guy Central iPhone App. At some point, though, we certainly hope you become a paying client, be it for The Computer Answer Guy, Virtual VIP, PC-VIP, or any of the other services we offer.

Here’s the important question: what, exactly, should be free?

Last year, we did an experiment using a service called Hubspot. As I told you then, Hubspot is an absolutely great way for a business starting from scratch to attract lots of traffic and attention. Note, specifically that I said “starting from scratch”. Using Hubspot requires a commitment that’s just too hard to make if you have an existing web site and don’t feel like tearing it down and starting over.

What’s worse, though, is this: Hubspot’s business model involves holding you hostage. Once you’re in, there’s effectively no way out.

True, your data belongs to you. If you can figure out a way not only to get the information you create and store using Hubspot back out but also to replicate the connections and other important details that make Hubspot do its marketing magic, you are, as they told me when I brought this point up, welcome to leave any time.

But the whole point of using a hosted service like Hubspot (or  Drupal, WordPress, or anywhere) is to avoid the technical overhead. And I promise: if you had the staff and/or expertise to host the software yourself you wouldn’t have opted for the hosted version in the first place.

Mr. Buytaert’s point, on analysis, really means that hosted software needs to give you an easy way out that doesn’t blow up your other business processes. And he’s right. But that isn’t about either form of the word “free”. It’s about companies like Hubspot not creating business models designed to hold you hostage.

If you need help navigating this minefield, you know where to reach me . . .

Last week I made some noise about how ridiculous Facebook’s US Patent 7,669,123 is, and asked you to make noise too. Now, Our friends at Apple are showing us a real-world here-and-now example of why software shouldn’t be patentable under most circumstances.

Let me be clear, once again: software isn’t “unique” unless it does something that can’t be done some other way. By definition, then, the only time software should therefore “infringe” is when it uses exactly the same code to do exactly the same thing as what the Patents and Trademarks people call “prior art”. Apple, in suing HTC (manufacturer of the Google Nexus One Smartphone), isn’t so much defending its work or intellectual property as an “idea”.

Palm will be next. Motorola (they make the Droid) will get sued too, as will anyone who uses the idea of pinch/spread to zoom/widen. Again . . . Apple’s patent on exactly how to implement “multi-touch” might be unique, but the idea isn’t. The idea can’t be patented. Software patents are ridiculous.

Software patents are a business change that benefits no one except the attorneys who get paid to sue or defend against suits. Don’t fall into this trap. Make your next business change a real change.

Who Wants a Patent? Because they seem to be getting handed out for just about anything.

I’ve long believed that in general software patents are a very bad idea. This week the United States Patents and Trademarks Office set a new record for calling something unique that’s just not anything of the sort.

To start, let me state that I’m not an attorney. That said, I’ve dealt with Intellectual Property for a very long time and successfully defended against a trademark infringement claim when my software Uninstall for Windows was sued by the makers of the program Uninstaller. In fact, I got Uninstaller’s trademark invalidated. It was pretty much a matter of explaining common sense in a calm, rational manner to the USPTO.

So when Facebook received US Patent 7,669,123 this week I was dismayed. Patents and the applications filed for them are supposed to describe something unique, and as much as I believe that software is mostly a representation of an idea rather than a thing and therefore shouldn’t generally be patentable at all, Facebook’s patent for “Dynamically providing a news feed about a user of a social network” doesn’t really even describe software.

Make no mistake: US Patent 7,669,123  describes the use of software, but it doesn’t actually lay out the software being used at all. 7,669,123 also tells what the use of the software will be, but functionally that use can be described very simply:

“We’re going to take information based on a set of criteria that we believe are important to you, decide what’s important, and show (only) that to you“.

You know, kind of like what the editors and staff at a newspaper do. Not New. Not Unique. Not Patentable.

In fairness 7,669,123 automates that process. And if Facebook described the specifics of the algorithm that they use in their application for what has become 7,669,123 then that specific process, if unique, might deserve patent protection. But they haven’t.

I don’t know whether I’m more upset that the USPTO has misunderstood the very idea of what a patent is, or that Facebook, with 7,669,123 in hand, is likely to start suing any and everyone who automates selective informational displays in anything that might be called a “social networking” environment.

Oh: and the very title of the patent application is not descriptive of what the patent does, which should have been enough to get the application squashed out of hand. The process Facebook describes does not “provide a news feed about a user of a social network”. It provides a news feed about the people the user knows.

If you’re at all concerned about this—and you should be—I implore you to contact the Office of Patents and Trademarks to get patent 7,669,123 invalidated. And if you’re MySpace, Twitter, or another social network and you don’t make big noise about this, well, enjoy the next thirteen years in court.

OK, stop laughing. The Beast of Redmond has been breaking its word on a variety of things for as long as I can remember. Not news. The next version of Windows will take too long to get here and when it finally arrives will stink (Hello, Vista). At least Windows 7 looks promising, and it took way less time to crank out!

This, though . . . I’ve never seen Microsoft do anything as blatantly ugly as this.

You know how every time a new version of Microsoft Office comes out you ask yourself whether to bother upgrading? It stopped being about features a decade ago, right? Word and Excel don’t need new features, PowerPoint adds things that only real gurus can use, and let’s face facts: you don’t use Access.

I’m still chugging along with Office 2003, and with Office 2007 long past and Office 2010 on the horizon, I don’t see the event that’s gonna make me change my mind; I don’t care about the “Ribbon”, thanks, and the file format change means nothing to me since disk space is now all but free and the new format is really just the old format in a compressed file and there are free tools available that open them anyway.

Well, hang on:

Microsoft has just been granted a patent on technology built into the Office 2007 version of Word‘s file format. The not-so-funny thing about this is that Microsoft pursued this patent after first taking steps that looked like they were trying to create a real file “standard”. Pretty much the whole world got on board with this standard, and now Microsoft is in a position to go back and start playing rough with Google, OpenOffice, Zoho, and anyone else using the “open” technology.

Those big companies can defend themselves, and little companies are less and less able to compete in the software world anyway, so before this turns into a rant, let’s get to the point:

You Have To Protect Yourself.

The chance of Microsoft knocking on your door or even on IBM’s or General Electric’s looking for licensing fees is approximately zero. But the Organization for the Advancement of Structured Information Standards, the folks who put the whole idea together, fell asleep at the switch, and are going to find themselves obsolete if their member companies aren’t protected from the wrath of Microsoft’s Patent Attorneys.

And you, too.  Watch out for the “gotchas”. Change may be good, and staying ahead of its curve will take you a long way, but if you don’t manage change, one day you could find yourself looking at the same kind of problem that Microsoft is about to make for the rest of the software world.