Wired on Friday: Perusing the headlines in the technology press, one would assume that patents were some new high-tech weapon to attack your corporate enemies, rather than a time-honoured way of ensuring a limited benefit to an innovation.
In the last few days, there have been reports of Netflix, which runs an online DVD rental company, using patents to stop Blockbusters from attempting a similar project. And just last week the US supreme court heard arguments in a case between eBay and small e-commerce company MercExchange, which claims a patent on the ability to "buy [ an auction item] now" at a fixed price.
Meanwhile, the makers of the Blackberry mobile messenger service, RIM, have been sued almost to extinction by another company for an alleged patent violation.
The comparison between patents and weapons might be more accurate than it seems. We may well be in the middle of a freewheeling patent war, as more and more companies and groups collect the most wide-ranging of patents, merely to defend themselves from attacks from others.
Washington at least seems aware that there is something wrong with how the US patent system is operating. Some feel it is due to the cutbacks of financial support to the government-run US patent office (USPTO). Patent examiners are poorly paid and employee turnover is high. The pressure to get patents passed means that unoriginal ideas are often passed and are only challenged after expensive and public court wrangling.
Others feel that there is a deeper policy issue, with the growing breadth of what "innovations" can be granted a patent under US law.
Most notoriously, new ideas in software and business practices are now patentable in the US, leading to monopolies being granted for the most nebulous of concepts. Individuals have been granted patents on the way that a mouse cursor moves across a screen, or for the idea of having a single click on a website to pay for an item.
Whether the reforms will be a financial bandage or an overhaul of the entire system depends on political will. In congress, the rhetoric has been strong, but the follow-through has proven to be weaker.
This Wednesday saw a key congressional sub-committee cross-examine the head of Blackberry and the director of the USPTO on patent quality. But notably, the committee made no reference to the patent reform proposals introduced as bills last year. With elections edging closer, and Hurricane Katrina and corruption still washing around the halls of power, it seems Washington has other matters on its mind. This leaves tech companies finding their own solutions to the problem.
The result has been the growth in "defensive patent" strategies: patents applied for and hoarded purely so that if another company comes after you with their patent portfolio, you can strike back.
Naturally, it's a little hard to tell a defensive patent portfolio from a malicious one. When Amazon patented one-click purchasing, chief executive Jeff Bezos asserted that it was collecting patents defensively - until the company sued competitor Barnes and Noble.
Perhaps a clearer example of the practice comes from a group that would be torn apart by its own members if it dares to use patents aggressively.
Open source programmers see software patents as a direct threat to their hobby, passion and business model. With the success of their work entirely based on their ability to distribute software without having to pay any licences, a patent software suit could damage their free software's viability and its credibility among business adopters.
For the most part, programmers like Linus Torvalds, the co-ordinator of the free operating system Linux, are not worried by general patents. If a suit was targeted at software methods used by Linux, says Torvalds, the developers would simply rewrite the code to avoid them - or at the worst, cut out the offending module.
But others tread in more dangerous territory. When a group of prominent coders decided to make a free re-implementation of Microsoft's .Net programming system, many other opens source developers warned them to stay away. The free version of .Net, called Mono, let software written for Windows run on Linux computers. And while Microsoft gave the project its blessing, many warned, conspiratorially, that it could be a trap. Linux coders would start to program using Microsoft libraries and languages, only to find the rug pulled from under them when Microsoft asserted its patents on the technology and forced Mono to cease development.
The result has been a deep reticence by free software developers to adopt Mono, even though the most anti-Microsoft observers admit that the .Net framework has proven to be rather good.
Nonetheless, last month saw Mono included in the "Fedora" Linux distribution, together with a note that coders should not be concerned about patent issues.
The reason soon became apparent. Last December, a mysterious buyer bought some of the most wide-ranging suites of patents for $15 million (€12.37million) in a bankruptcy sale. The patents, previously owned by a company called Commerce One, cover most of the basics of electronic commerce. Almost any company is potentially liable under the patents. It was assumed they were bought by some malicious speculator, intent on litigation.
It turns out that the buyer was Microsoft competitor Novell, who has a sizeable investment in the Mono project. The Commerce One patents, it was announced, would only be used in court if anyone dared to sue a collection of open source projects - which included Mono. The patents would be used as a protective shield around the free software coders.
Will it work? Or will a single small patent case start off a nuclear war of litigation? Until the politicians step in, the word of technology will have to hunker down in its explosive-lined bunkers, and hope for the best.
Danny O'Brien is activism co-ordinator, Electronic Frontier Foundation
