The people of the Eastern District of Texas may be getting smarter about software patents. At least, that's if the recent Red Hat/Novell victory against IP Innovation LLC is any indication. For the straight dope, read what Red hat's Rob Tiller has to say about the case.

For those of you who don't know about the world of patent litigation, (and when it comes to software patents, I prefer to call it "Patent Trolling") when you've purchased the remaining IP rights of some no-name software company that died in the 90's, you can usually find at least one large software company which could be considered to be infringing upon those IP rights. Especially if those IP rights are based on software patents.

And if you want to be a really big and dangerous patent troll, you sue your "customers" in East Texas. I say "customers" because, let's face it, entities like IP Innovation do nothing but sue over patent rights making their only customers the defendants in these cases. IP Innovation is a subsidiary of Acacia Research Corp. and Technology License Corp, so it was not acting alone, out of self-preservation. This was a complete troll-job, with Red Hat and Novell accused of violating a 1991 patent on sharing a workspace across computers.

If this patent was interpreted in a evil bad way, you could use it to make telnet and SSH illegal. How's that for a patent?

So, let's back up here. There are a number of initial presumptions that IP Innovation makes that should be utterly insulting to any reasonably intelligent human being. IP Innovation chose East Texas as the venue for this litigation because it is perceived to be a district full of idiots. Clearly this is not the case, as I know many very smart folks from Houston, Austin, and all of the areas in between.

But IP Innovation, and dozens of other companies I could name right now (Worlds.com, Bedrock Computer Technologies, VitnetX... ), are convinced that this is the place to litigate software and technology patents. They believe that if they have an East Texas jury, they can win any case because those jurors will be too stupid to understand the nuances of software development. I personally think that's unethical and again, extremely insulting to the citizens of Texas. 

But if you look at the results these trolls get in the Eastern District of Texas, it's hard to find a fault with their reasoning. Even Microsoft gets steamrolled in East Texas courts. It recently lost two patent cases in East Texas courts, both with the same lawyers on each side. Microsoft's legal representative is considered the best patent litigator in the business. His competition? An old, southern gentleman with a slow way of speaking, a long drawl in his voice, and a tendency to talk to the jury as though they were all under attack by this be-suited, rich yankee.

Personally, I feel that all software patents are silly. You can't patent code any more than you can patent a novel. It is absolutely absurd that a patent on something as generic as sharing a workspace across computers would even be considered valid today, when the original patent had to be implemented in a single language, likely on a single platform. If you patent a hinge that only works on some strange new type of cabinet you've built, you can't patent it and go off to sue the world's largest hinge makers.

Is it not unreasonable to think that software should be subject to copyright, not patent law? After all, there are thousands of books about murder mysteries. Can you patent the murder mystery? Of course not, but you can copyright your implementation of it. Imagine if the Agatha Christie estate spent its time suing James Patterson for patent infringement. Oh the huge manatee!

But perhaps the only way we can stop these trolls from winning so often is by sending a massive force of anti-software-patent workers to East Texas to go door-to-door and informing the juries directly. That would be a political effort I would support. But hopefully the Red Hat/Novell versus IP Innovation case is a sign that the East texas tyranny is about to end. Maybe this is that area's first step into a more thoughtful world?

But when that happens, we can all be assured that the litigation will just move on to Alaska, North Dakota, or some other area where there is little if any technology industry.