Google Wants to Make it Easier to Steal Patented Software

Google has long despised software patents. No doubt because other companies’ software patents slow down Google’s march toward world domination.

In a July 2011 interview with Bloomberg, Google chief lawyer Kent Walker said “The tech industry has a significant problem. Software patents are kind of gumming up the works of innovation.”

By taking this position Google aligns itself with the “everything should be free” open source crowd that has no respect for the concept of intellectual property at all.

Most other companies that innovate for a living – including software companies – believe that patents play a vital role in protecting investments in research and development.

A blog post from BSA / The Software Alliance reports on a recent (February, 2013) conference on Capitol Hill where several industry leaders affirmed the importance of software patents:

It was a deep and thoughtful discussion that made several things abundantly clear — starting with the fact that patents play an important role in driving software innovation, which is to the benefit of the whole economy.

Tom Lange, who directs corporate R&D, modeling and simulation at Procter & Gamble, explained how software is used to solve complex design challenges involved in every minute detail of common products we take for granted in our lives. Microsoft General Counsel Brad Smith, Oracle General Counsel Dorian Daley, and IBM Software Group Vice President Neil Abrams explained the enormous investments in research and development that are required to create those kinds of software tools. And David Kahn, CEO of Covia Labs, explained how, for small, startup companies with breakthrough software solutions, patents demonstrate to investors that what they have in front of them is legitimately novel technology with real growth potential.

Contrary to those industry players, Google remains opposed to software patents. Instead of fighting the basic concept of software patents, the company has a new strategy: make software patents so narrow they are useless for protecting ideas.

At a USPTO roundtable on software patents held at New York University on February 27, 2013, Google presented its view on how to restrict software patents: require submitting algorithms with patent applications. Google senior patent attorney Suzanne Michel claims that requiring algorithms would “limit future claims of infringement by clarifying exactly what the patent is for.”

Requiring algorithms could potentially make software patents useless in two ways. First, it takes a lot more resources to develop all the algorithms to implement an idea than it takes to come up with the idea. Requiring algorithms would benefit big companies such as Google that can afford to make a major investment in a program before getting patent protection. Smaller companies or individual investors may not be able to make the investment so easily. The great American inventor, Thomas Edison, said “Genius is one percent inspiration and 99 percent perspiration.” But it’s that one percent that the patent system is designed to reward – brilliant (inspired) ideas that merit protection.

The other major problem with Google’s proposed solution to software patents is the problem that reveals Google’s desire to steal other people’s patented ideas. An algorithm is one particular way of implementing an idea. In many cases other algorithms could be used to implement the same idea. If it’s the algorithm that’s protected, not the idea, all Google (or any other company with the resources) would have to do to steal a cool idea is throw enough programmers at a problem to find a different algorithm to reach the same goal.

We don’t deny that there are some software patents that get through the system that probably should not have. This is not due to a lack of algorithms: it’s because software is a very rapidly evolving field, so it’s hard for patent examiners to keep up on the state-of-the-art, and with the pressure to process patents faster examiners may not be spending enough time on each patent application.

As we said in our blog post “In Defense of Software Patents,”

Yes, there are some bad software patents that get through. But a bad patent is a bad patent, whether it’s a patent on software, hardware, or shoes. The answer is not to throw the baby out with the bathwater and get rid of all software patents. The answer is that the USPTO needs to do a better job of setting and enforcing proper standards for software patents.

Giving patent examiners better tools, better training, and more time would go a long way toward solving the problems with software patents.