Microsoft on a White Horse

I want to wish Microsoft the best of luck and the best of legal representation in its latest court battle. It's bloody rare that I would say this, because Microsoft is a blight on the technology industry and deserves to lose most of the cases brought against it. But this time, they're in the right, and if they fail the consequences would be horrible.

The case involves Internet Explorer (one of my favorites pieces of Microsoft software to hate, because of the illegal tactics Microsoft used to put it on nearly every Windows system in the world). A company called Eolas - created several years ago, apparently just to profit from software patents - is suing MS for infringing on a patent they acquired from the University of California, which covers the seamless integration of plug-ins (like Flash, Java, Acrobat, QuickTime, and others) into a web browser. If Eolas prevails, Microsoft might have to cripple IE to make plug-in-enabled content deliberately less convenient. The idea of hobbling IE sounds like just desserts to me (since that's what Microsoft has been doing to everyone else's browsers that run on Windows), but I have to suppress a cheer over it, because the same ruling would probably enable Eolas to haul Netscape, Opera, Apple, and every other browser developer into court to enforce the same patent. Many of these browsers (especially those developed as non-commercial software) would vanish, and the ones that remain would be forced to work poorly just to comply with the terms of Eolas' patent. Microsoft could dig up the money to licence it, but we're talking a lot of money, and they're better off getting the patent voided. Which is good because it probably never should have been granted in the first place.

Jeffrey Zeldman's recent Daily Report has more info about the case and its ramifications. This is just one example of the mess that has been developing ever since the U.S. Patent Office started issuing patents for software. The idea of patenting inventions which exist only as software code has some merit, because the line between hardware and software is blurrier than you might suppose, and software is the form that much new technology takes.

But it's an incredibly slippery slope, and the USPTO's standards for issuing software patents have been so low that they cover rather obvious "inventions" (such as Amazon.com's one-click purchasing), and enable a company such as Eolas to hinder technological advance... which is not was the Patent Office was set up to accomplish. Meanwhile, the matter of software patents is a raging wildfire in Europe, where the EU parliament is debating it, and a great many technologists are protesting a proposal to permit them.

My feeling about patents in the contemporary era - regardless of whether they are issued for software or for anything else - is that the term of patents is far too long. In the 18th century, offering an inventor a 14-year exclusive on his invention gave him some competitive advantage for his efforts, in exchange for letting everyone else use it after that term. But these days a patent becomes obsolete long before it expires, rendering the invention useless to the public, especially now that the term has been stretched to 20 years. Even 20 months might be too long in certain hotly-competitive tech markets.

There's no easy answer to the whole question of patents. But as for the case of Eolas v. Microsoft, Bill Gates is on "our" side for once.