In my previous post, I complained about patent trolls — obscure companies using their patent portfolios to attack developers who have no practical way to determine whether or not they’re violating somebody’s patent when they write software. But big, innovative companies who file for patents and use those patents offensively are just as bad, if not worse.

Philip Elmer-DeWitt takes a look at one of the patents that Apple has accused Android handset-maker HTC of violating. In this case, the patent is easy to understand and is associated with a popular and well-known feature of iOS. The patent in question is for the feature that enables iOS to detect data like phone numbers or addresses in text that is being displayed and turn them into links that allow the user to perform the appropriate action — dialing the number on the phone or launching the Maps application with a map of the address.

In this case, I’d argue that the patent fails the test of obviousness. Nobody who designed a phone that displays text would not think to enable users to dial phone numbers embedded in that text by tapping on the number. I’d also guess that there’s plenty of prior art in this area as well. Certainly this is related to the work done on microformats.

There are also email clients going way back that automatically made email addresses embedded in messages clickable. There are even ad schemes that scan pages and convert keywords into ads automatically. The feature in question is useful but not innovative. And yet Apple is finding success petitioning the International Trade Commission to enforce this patent.

Unfortunately, as obvious as it seems to me that the entire system is a disaster, I don’t see any path forward for patent reform in the near future.

Craig Hockenberry warns of the number one threat to small, independent development shops — patent and copyright trolls:

The scary part is that these infringements can happen with any part of our products or websites: things that you’d never imagine being a violation of someone else’s intellectual property. It feels like coding in a mine field.

From our experience, it’s entirely possible that all the revenue for a product can be eaten up by legal fees. After years of pouring your heart and soul into that product, it’s devastating. It makes you question why the hell you’re in the business: when you can’t pay salaries from product sales, there’s no point in building it in the first place.

Can you remember the last time you read a news story that made you thankful for patents or copyright law? I can’t. I had to sit on this post overnight as I thought about whether I was in favor of abolishing the entire intellectual property regime. As it turns out, I’m not. There are three major areas of intellectual property law, patents, trademark, and copyright.

Trademark law has the strongest leg to stand on. It seems pretty clear that people should, for the most part, be able to trust that something with a certain name is produced by the company with that name. Going to the grocery store and seeing shelves of drinks called “Coca Cola” that were produced by different companies would be confusing. And without laws to prevent it, that would certainly happen. Furthermore, it’s easy to see that trademark law is working effectively because companies generally do trademark searches before they name products. Releasing a product with a name that has a trademark conflict is seen as a huge gaffe. That’s a sign of an effective legal regime.

Copyright is horribly abused, and the routine practice of extending copyright indefinitely is incredibly pernicious, but I also think it has value. I don’t think I should be able to launch a site called the Rafeington Post that just publishes the full text of all of the stories from the New York Times that I happen to find interesting. I should be required to give them a light rewrite like that other site does. In a general sense, I should not have to compete with bootlegs of my own work as soon as bootleggers are able to start making copies of it. Again, people who copy others’ work outright understand that they’re in violation of copyright law, even if they don’t care.

I am inclined to argue that patents should go away entirely, with the caveat that I’m not entirely sure how they work in industries other than my own. In software, though, patents are never, to my knowledge, taken into account at any time during the product development process. Patents are generally too opaque to even try to compare to products that are in development. Furthermore, the computer industry is built on imitation. One day, there were no popular phones built entirely around a touch screen interface. Apple came up with the iPhone, and not long after, touch screen phones that looked very, very similar to the iPhone were everywhere. I don’t think that it could be argued that this has hurt consumers. Apple remains incredibly profitable, and mobile phones are evolving rapidly, much to the benefit of users.

People in computing produce the products that they think will be most successful and rely on luck to keep them out of the crosshairs of ruinous patent litigation. Because there are so many patents, and because of the way they are evaluated, there is no way to easily figure out which patents you might violate with a product or how to get around violating those patents. In the end, the application of patent law is completely arbitrary. Given that a system cannot be both just and arbitrary, I come down on the side of eliminating patents entirely, although I suppose I could be convinced otherwise.

In the end, the laws that are meant to protect creativity and innovation instead often stifle them. Cory Doctorow recently reviewed a book that shows that the Beastie Boys’ album Paul’s Boutique would have lost $19.8 million had all of the samples been cleared under today’s regime. And on a more speculative note, Matthew Yglesias also points out that intellectual property laws could in the end be the primary barrier between us and a utopian future.