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The Protection Racket Shakedown


By Allen Holub
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November 1, 2004 —  (Page 1 of 3)
Patents are a weapon. A patent’s value is proportional to the patent holder’s willingness to go to court. Many businesses (IBM is notable) use patents as an offensive weapon. They attack the competition for infringement in order to drive the other company into bankruptcy. Looked at this way, the validity of the patent is not much of an issue. The U.S. Patent Office, which seems particularly incompetent when it comes to weeding out bad patent applications, doesn’t help the situation.

Unfortunately, determining validity is surprisingly difficult. You defend yourself from a patent-based attack by proving “prior art.” You have to show that someone other than the patent holder had the idea first.

In pursuit of getting some work as an expert witness, I was chatting recently with an attorney at Fenwick and West, one of the Bay Area’s larger high-tech legal firms. She was working on a case where IBM was suing a smaller company for infringement. IBM was claiming that they had a patent on the notion of checking referential integrity in a database by examining the references one at a time.

Of course, every programmer that you talk to thinks that it’s nonsensical to patent such a basic concept, one that’s been around since the dark ages. The attorney, however, was having a hard time actually documenting this fact. She needed to locate someone who had used or published the idea before the patent was actually filed, and could document its use. Finding such a person was not easy.

(As an aside, one way to prove prior art short of actually applying for a patent yourself is to keep a written engineering notebook with bound, numbered pages. Date and sign each page and give the notebook (or certified copies of it) to a neutral third party for safe keeping. You should do the same thing with snapshots of your source code. Another way to establish prior art is to publish your ideas and keep copies of the publication.)




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