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This is a re-post of Blueplastic's question from SO, which was closed. I think this is a excellent question and I would like to hear what people thinks.

To expand this further, look at the patent that Yahoo is suing Facebook for:

http://paidcontent.org/article/419-meet-the-10-patents-yahoo-is-using-to-sue-facebook/

Some of these patent are so broad and I wouldn't be surprised that many developers could inadvertently developed their application to function in such a way.

I understand that patent is supposed to protect intellectual property and promote innovation. However, it seems that if certain popular techniques are patented, it will become a hindrance to innovation.

  • What if there is a patent on URL shortening?
  • What if there is a patent on WYSIWYG editor?
  • What if GO4 patented their design patterns?

I am not a lawyer so these items may not be patent-able, but that's also part of the question I guess.

Edit

Anothe excellent article discussing the issue: http://www.wired.com/epicenter/2012/03/opinion-baio-yahoo-patent-lie/

http://stackoverflow.com/questions/6052154/what-does-facebooks-new-photo-tagging-patent-mean-for-developers

Yesterday it was published that Facebook has gotten a patent for tagging people in pictures: http://www.insidefacebook.com/2011/05/17/facebook-patent-photo-tagging/

What does this mean for other developers?

So, if I want to make a web-based photo sharing application where I want to let users tag their friends, does it mean that I have to give Facebook royalties?

I believe iPhoto and Picasa also have people tagging features. Do they now also have to give Facebook royalties?

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This means you should move to a banana country where patent means ****. I always thought of such patents stupid. There is even a guy in Australia that patented fire (can not find the article) –  BЈовић Mar 13 '12 at 7:46
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When I see stuff like this it makes me wish that I had chosen to go to law school instead of switching to programming. –  jfrankcarr Mar 13 '12 at 11:00
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@jfrankcarr as a developer at a law school, I think you'd regret that. –  Nic Mar 14 '12 at 18:02
    
@BЈовић - As for software patents, Europe is full of banana countries. –  mouviciel Feb 19 '13 at 15:30

3 Answers 3

up vote 2 down vote accepted

You don't get patents just like that! Even if you are FB,Google or Bell labs. It's not like you go on a shopping mall and buy an idea - get it patented.

As far as other examples you gave - patenting WYSIWYG, GoF patterns, - there are so many other rules applies - but for your primary curiosity to fulfill, anything which is known to public and demonstrated in public - is called prior art. And no one else mimicking it will get a patent for it.

As regards to other 10 patents of Yahoo, and FB having tagging - it must have been through a legal process, they might have filed it at the time when it was unheard of. This is no surprise - Amazon did a real life "shopping cart mimic" on web; they called that as one-click-shopping. World over today it becomes strange if you don't make your shopping site model that way - but Amazon did it first and they got it patented and even licensed. Sony had a patent on Walkman which is essentially portable audio player at the time when all elements of making an audio player was actually known.

Most ideas begin with extremely broad patent topics. Later on, they are not only isolated patents but large number of patents get granted on subjects because patent office realize that more genuine innovation has gone through in the sequel patents - given that the broader patents gets redefined under the scope.

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Thanks for your answer. Not sure why it was -1. –  ltfishie Mar 13 '12 at 23:23
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"And no one else mimicking it will get a patent for it. " I wish that was true. –  Jim In Texas Mar 14 '12 at 19:47

Disclaimer: I am not a lawyer, and most of what I've gathered about the topic has come from online sources and discussions with people claiming to be patent lawyers :)

Firstly, regardless of whether this is right or wrong, the patent office only does a basic filtering before granting a patent. It is not really feasible for them to have an expert on hand on every topic, or to exhaustively search everything for evidence of prior art. As such, it becomes the work of the courts to decide, in the event that those types of disputes arise.

As far as I know, you have at least two possible ways to outright defeat a patent claim - show prior art (as in, the item being patented was invented by someone other than the patent holder, before the patent), or to show that the patent is trivial ("it is obvious to any expert in the field"). Having said that last part, I am not sure how things like the blinking cursor patent can have been successfully used... but the moral of the story is this - if you feel that you could defend your use of a patent in court (and are willing to accept the risk that you are wrong), then go ahead and use it.

An interesting anecdote I heard from a patent lawyer is that most (less well known) patent trials go something like this: a jury is brought in, most of whom have very little expertise on the topic at hand. Both parties bring in expert witnesses who argue why their company is right. The jury votes in favour of the most charismatic expert. Sounds like an awesome system :)

EDIT: To actually answer your question, I doubt that the patent will really affect too many developers. Some will be working for large companies, and they will make arrangements (read: license) to use the patent, where necessary. Most of the remaining people will either not know or care about the patent, since it's doubtful that Yahoo will actively sue some guy who makes 35$ a month in adwords from his photo tagging site.

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"a jury is brought in" And as a Texan, I'm proud to say that the world technical hyper-nexus of Marshall, Texas provides most of these juries in the United States. –  Jim In Texas Mar 14 '12 at 19:49

This isn't a new topic and I don't think we've seen the last of it either. I remember many years ago in university I was in a software ethics lecture and our lecturer took us through a software patent that a company had registered. It concerned changing one part of the screen while keeping a tab of options on the left hand side unchanged. I'm hoping this is reminding everyone of html frames. Linked is a site that has covered the story but I'm sure there are more in-depth and up-to-date news stories on the web: SBC stakes claim on Web frames

I'm not too sure about software patent law and how applicable it is (I once had a friend working in industrial research explain it to me, but it got complicated very quickly) but in the UK, a business process isn't patentable but an implementation of that process is patentable. UK Software Patent Law That is a very vague explanation and one that is open to many different interpretations by many high-paid lawyers. This, in my view, is a problem with an old system (the Patent Law system) that is trying to keep up with an agile, fast-paced system (software development).

But in regards to whether the average joe developer will be affected by actions of larger companies, I find it difficult to believe that a multinational company like Yahoo or Google would go after a single developer for infringing a patent. Take the example given in the question referring to a metaphorical patent on URL shortening; suing every developer who as implemented a URL shortener would be (1) time consuming, (2) bad for PR and (3) bad in terms of trying to hire talent to that company.

I view these software patent wars as large software companies trying to become alpha male in a competitive world. The patents are being used in an attempt to remove competing products from the market, even if it is temporary to allow the plaintiff to catch-up.

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