Software Patents... still crap

Today I read on Dairy of an x264 Developer that Tandberg had patented, or rather applied for a patent on, some algorithmic techniques that Jason had used in his work on x264 and ffmpeg. While interesting, to me at least, the real point of this is to point out that it is really the flawed patent system that leads to this sort of application being made.

Not even entering into the idea that software patents are a bad idea, there is plenty in the media about that already, this illustrates some inherent flaws in the system. While obviously Tandberg in this instance have acted in a very bad manner, they have done so because the patent system not only allows such actions but even goes some way to encourage it. It is only because the developer working on this area, had the patent application brought to his attention that it was noticed. 

The problem, I feel, really lies in both the prior art and obviousness determinations made by the USPTO and the cost of challenging them. While I do believe that this patent will be stopped, similar patents copied from other peoples work have been granted in the past and have gotten through the approval process. The fact that the infringing patents have not been picked up is related to how prior art and obviousness are assessed. Ideas that are completely obvious, to the point of not being deemed worthy of patenting, to someone in a particular field, may not be at all obvious to someone outside that particular field.

How is it then that the USPTO is supposed to ensure that obviousness is tested thoroughly? Well, in all honesty they can't possibly ensure that some don't fall through the cracks. This is where the second and more insidious problem comes into the fore. A big company with a scary team of lawyers is basically always going to win against the little. If Joe Bloggs from Farmville Tennessee comes up with an idea that is stolen by a large company his small amount of funds to fight a patent battle will be swallowed in briefs and other such things from the large company. To the point where he can no longer challenge the validity of the patent for fear of not being able to feed his family.

The excessive cost of challenging patents has led to a situation where large companies, like Tandberg, feel comfortable attempting to patent things like this. The risk reward payoff is worth it for them. They are going to get a slap on the wrist at worst and at best they have a patent. This patent will then be used primarily as a negotiation tool with other big companies that think Tandberg has stolen some of their technology.

Basically, they come up and say, 'hey you're using this which we patented', then Tandberg comes back and says 'well you're using this which we've patented' and then they both agree to license the other to use their ideas and they live happily ever after.

Companies are willing to patent obvious things (touch screen computer anyone?) so they have a drawful of patents to wave at their competitors should the need arise and when they get desperate to start suing people in a vague attempt at perpetuating the companies existence. However, the big patent wars never really get anywhere in the long run and just seem to hinder the growth of new and exciting technologies.

So I'd written this whole ramble and then stumbled across a thread on Slashdot which was started by another coder that had the same thing happen to him. There is some pretty good discussion in there as well.