Software patents invite broad interpretation because of purposefully vague wording
Yahoo alleges that Facebook's News Feed violates a patent filed by their former CTO
According to Andy Baio, Yahoo's lawsuit against Facebook is an insult to those who filed patents
While most of the tech world was partying at South by Southwest in Austin yesterday, Yahoo announced it was filing a lawsuit against Facebook for allegedly infringing on 10 patents from their 1,000+ patent warehouse.
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.
In the interest of full disclosure, I have a small supporting role in this story. None of the patents I co-invented are cited in the Yahoo complaint, but a handful of applications I worked on with Yahoo were granted patents, weaponized now to use against people like me.
Here’s how the process worked, in my case:
In 2005, Yahoo acquired Upcoming.org, the collaborative events calendar I’d launched two years before.
Back then, the Web 1.0 behemoth seemed on the verge of turning things around. A series of smart moves – high-profile hires, the Oddpost and Flickr acquisitions, the launch of the Yahoo! Developer Network, and their Research Lab – was breathing new life into things. Two months after we were acquired, Del.icio.us and Webjay joined us in the Yahoo fold.
After we moved in, we were asked to file patents for anything and everything we’d invented while working on Upcoming.org. Every Yahoo employee was encouraged to participate in their “Patent Incentive Program,” with sizable bonuses issued to everyone who took the time to apply.
Now, I’ve always hated the idea of software patents. But Yahoo assured us that their patent portfolio was a precautionary measure, to defend against patent trolls and others who might try to attack Yahoo with their own holdings. It was a cold war, stockpiling patents instead of nuclear arms, and every company in the valley had a bunker full of them.
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.
Years after I left I discovered to my dismay that four of them were granted by the U.S. Patent and Trade Office.
I thought I was giving them a shield, but turns out I gave them a missile with my name permanently engraved on it.
I was naive. Even if the original intention was truly defensive, a patent portfolio can easily change hands, and a company can even more easily change its mind. Since I left in 2007, Yahoo has had three CEOs and a board overhaul.
The scary part is that even the most innocuous patent can be used to crush another’s creativity. One of the patents I co-invented is so abstract, it could not only cover Facebook’s News Feed, but virtually any activity feed. It puts into very sharp focus the trouble with software patents: Purposefully vague wording invites broad interpretation.
In their complaint, Yahoo alleges that Facebook’s News Feed violates “Dynamic page generator,” a patent filed in 1997 by their former CTO related to the launch of My Yahoo, one of the first personalized websites. Every web application, from Twitter to Pinterest, could be said to violate this patent. This is chaos.
Software patents should be abolished, plain and simple. Software is already covered by copyright, making patent protection unnecessary.
Ask any programmer – developing software is as creative and unique as writing poetry.
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.
I’m embarrassed by the patents I filed, but I’ve learned from my mistake. I’ll never file a software patent again, and I urge you to do the same.
For years, Yahoo was mostly harmless. Management foibles and executive shuffles only hurt shareholders and employee morale. But in the last few years, the company’s incompetence has begun to hurt the rest of us. First, with the wholesale destruction of internet history, and now by attacking younger, smarter companies.
Yahoo tried and failed, over and over again, to build a social network that people would love and use. Unable to innovate, Yahoo is falling back to the last resort of a desperate, dying company: litigation as a business model.
That it’s Yahoo makes it even sadder. The complaint isn’t really wrong when it asserts that: “For much of the technology upon which Facebook is based, Yahoo! got there first.”
But being first with something generic that would have been invented by someone (like the wheel) – as opposed to something few could have imagined (like the Segway) – is a big difference.
Ask any start-up CEO – execution is everything.
As Facebook founder Jesse Eisenberg cum Mark Zuckerberg says in The Social Network, “If you guys were the inventors of Facebook, you’d have invented Facebook.”