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Today’s Note: The Melodrama of Software Intellectual Property

March 14, 2012

Today’s Note discusses a article about Yahoo’s recent patent lawsuit against soon-to-IPO Facebook. In particular,the article explores aspects of patent filings made by Yahoo and how some of them are being used in the recent legal action against Facebook. “A Patent Lie: How Yahoo Weaponized My Work” describes the patent application process as roughly analogous to a tooth extraction: “Against my better judgement, I sat in a conference room with my co-founders and a couple of patent attorneys and told them what we’d created. They took notes and created nonsensical documents that I still can’t make sense of. In all, I helped Yahoo file eight patent applications.” [italics are mine]

I sympathize with the author, and I am certainly no fan of the current intellectual property landscape, particularly with respect to software patents. Several earlier Notes have addressed the largely flawed patent process with respect to software.

With that said, there are some aspects of this article that bothered me. For example, in the above quote, the author tells us that participating in the establishment of patents occurred “against my better judgement.”  Similarly, he recounts that

after we moved in, we were asked to file patents for anything and everything we’d invented while working on Every Yahoo employee was encouraged to participate in their “Patent Incentive Program,” with sizable bonuses issued to everyone who took the time to apply.

I guess that my confusion here is that it seems to me that the author and his fellow Yahoo employees were more or less obligated to advance their employer’s efforts to secure their intellectual property. He presents those activities as misguided, when in fact they were, essentially, a reasonable expectation of Yahoo.

Was Yahoo’s behavior unreasonable? The author believes it is “deplorable.”

I’m no fan of Facebook, but this is a deplorable move. It’s nothing less than extortion, expertly timed during the SEC-mandated quiet period before Facebook’s IPO. It’s an attack on invention and the hacker ethic.

The “hacker ethic?” Seriously? I’m fairly lost in trying to interpret this article. Please don’t misunderstand me. I completely agree that the system is broken when it comes to software patents. When the author describes how a simple patent for a fairly primitive customized web page may be violated by nearly every modern web application, he has a strong and valid point. But how does a “hacker ethic” outweigh the law of the land, which our current patent and trademark code surely is?

Are some of these patents ridiculously vague? Yes. Is Yahoo’s move a cheap attempt to glean cash from Facebook by ramming some patents into its soft pre-IPO underbelly? Of course it is. It is cheap. It is distasteful. It also promises to be very effective.The author says that

Yahoo’s lawsuit against Facebook is an insult to the talented engineers who filed patents with the understanding they wouldn’t be used for evil. Betraying that trust won’t be forgotten, but I doubt it matters anymore. Nobody I know wants to work for a company like that

The patents “wouldn’t be used for evil?” Now this just sounds petulant and melodramatic. After all, Yahoo is a public, for-profit, corporation whose job it is to make money, inside the bounds of the law. The author points out that Yahoo isn’t doing that terribly effectively these days. Somebody owns that company – really, a lot of somebodies – and they expect it to make them money. This effort is certainly one of Yahoo’s more effective attempts to do that. Yahoo’s leadership isn’t being misguided by “attacking” the “hacker ethic.” Rather, they are fulfilling their obligation to run the company toward financial gain; if they don’t do that, they should be removed.

The author and I agree on a lot about Yahoo, its patent trove, and its lawsuit. But the article seems to rely on the notion that the software sub-culture should override the law. If you own a company, and don’t want to operate it for profit, that may be up to you. But don’t take that company public. Once you do, you have play the by the rules of Washington and Wall Street.

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