However by various searching methods you'll find a lot of patents that might restrict what you're about to write. So then what. Then you've got to figure out what they mean. That's really hard because patents are written in twisted legal language and the words don't mean what you think they mean. It's very hard to understand.
The Australian Government, in the 1980s, commissioned a study on the effects of the patent system. And this study concluded that there was no reason whatsoever to believe patents did any good for Australia, and said that if it were not for international pressure they would recommend simply abolishing the system. But since there was the international pressure they recommended making patents last a shorter period of time, narrower in scope and harder to get. And in particular they said that patents were completely failing at one of their main goals which was to cause useful disclosure of ideas, because they were so hard to read that engineers essentially never read them.
And they quoted an engineer saying "I can't recognise my own inventions". <laughter> And I've seen this too. A programmer named Paul Heckel developed a program and then patented... got a couple of patents that related to that program, and then when he saw hypercard released by Apple it didn't look anything like his program, so he would never have dreamed that his patents might apply to it. But his lawyer said that the way the patents were written, they could arguably cover aspects of Hypercard.
So Heckel threatened Apple, and then, when that didn't get results he started threatening some of Apple's customers. Because the users also can get sued. And eventually he settled somehow with Apple and got some amount of money that neither of them will tell us about. This sort of thing is a little bit like child abuse in that people don't like to talk about it. The victims are scared to talk.
So, once I was giving this speech in California, and Heckel was in the audience and he jumped up and said "That's not True - I just didn't know the scope of my protection". And I said "Yes, that's what I said". <laughter>. If I had said "No" he probably would have had some way to argue with me, but he sat back down and didn't open his mouth again. <laughter>
They love to use that propaganda word "protection", as if somehow an idea would get destroyed or become unusable if more people were allowed to use it. Reject that propaganda word. Never allow it. Never accept it. There's a lot of propaganda going on in this field. I'll - I may point out to you some other propaganda words. We've got to be vigilant against letting them into our own conversation, letting them warp our thinking.
Another propaganda phrase is "intellectual property", which I already partly explained. In trying to treat Copyright and patents as if they were one issue, whereas when software idea patents endanger software developers and copyrights don't is completely idiotic. Their effects are so different in practical terms that it is completely self-defeating to treat them as if they were a single issue. And in general anyone who talks about intellectual property is either trying to mislead you or mislead himself. More often the latter.
To attempt to think about "the issue of intellectual property" ensures that only foolish alternatives will suggest themselves to you as natural. It's a bit like trying to discuss the question of "fluids policy". You know, fluids policy would clearly cover air, water, milk, blood, oil, and various other things - mercury <laughter>. They're all fluids. We should obviously have one policy, there's just one issue there, right?
So, you're going to have spend a lot of time talking with a lawyer explaining what it is you're planning on doing so that the lawyer can explain to you what the patents prohibit and what they don't, and eventually the lawyer will give you an answer like this: "if you do something in this area you'll most likely lose the lawsuit. If you do something in this area you've got a considerable chance of losing, and if you really want to be safe stay out of this area. But be aware that there's a substantial element of chance in the outcome of any lawsuit".
So now that you know just what kind of business you are allowed to do and what you're not allowed to do, how are you going to deal with these patents? For each patent there are essentially three options you can try: one is to avoid the patent. Second is to get a license for the patent, and the third is to to overturn it - show it's invalid. And each of these options based on independent factors may or may not be possible in any one case.
So lets, first lets talk about the option of avoiding the patent. That means don't use the idea. So for instance if you were making a spreadsheet and you wanted to avoid the natural order recalculation patent that means don't put natural order recalculation in your spreadsheet. Would have been a rather lousy spreadsheet - people wouldn't use it.
Now when another feature, another example of a patented feature, was the feature for word processors, a feature of defining an abbreviation so you could take any letters you want and define that as an abbreviation, and then say what it should stand for, and then when you type that abbreviation followed by punctuation it would automatically replace itself by the expansion. So you could define cmt as committee and then you could type cmt<space> and it would turn into committee<space> or cmt<comma> and it would turn into committee<comma>. Anyway, the word processor "XYwrite" had this feature, and then they discovered somebody in the 80s had patented it. So they tried negotiating with him to get a license but they found out he was just impossible to negotiate with. And then they thought about trying to sue to overturn it in court, but they decided that was too hard - too expensive - so eventually they just took it out and they sent all the users a downgrade in the mail<laughter> - taking out that feature.
Now, how did I find out about this? Well, they wrote to me because it turns out that my text editor Emacs - the thing that I first became known for - had that exactly that feature in the 1970s. So they thought that I might be able to provide them with evidence to help them overturn the patent. So they had an argument they just decided it was too troublesome a way to go. even despite having the evidence in hand. So it's nice to know I've had at least one patentable idea in my life<laughter>. So they decided to avoid this patent. And it wasn't too hard, i guess, not having that abbreviation feature would be somewhat annoying to the users, but maybe they would still have considered the program usable. But, you know, if you look at your word processor you'll see hundreds of features, and they are all used by people even though you don't use all of the yourself. When you start taking out one feature after another after another eventually you end up with a program that the users say "this is just not good enough - it doesn't do what I want".
Sometimes what's patented is an algorithm, For instance the LZW data compression algorithm is a good example. We avoided that patent in data compression - we developed another data compression program which uses a different algorithm so the people who thought "I want to compress my file" they used our program. So we solved that problem, but the same algorithm is used in the PostScript language. PostScript language specifies there is an operator to do LZW compression and an operator to do LZW uncompression. Well, we can find another algorithm but it's useless.
No other algorithm produces compatible results. We can come up with another way to do data compression, but we can't implement PostScript. Not as it's specified.
Well, it turns up that wasn't too much of a disaster - only the compression is patented, not the uncompression. And people don't usually ask their printers to compress anything, they only ask the printers to uncompress. So we sort of squeaked by, just barely, on that one. But then the same algorithm is used in GIF files.
And the patent holder, Unisys, started threatening not just software developers but companies that had web sites with GIF files on them, saying "can you prove all your GIF files were made with a properly licenced program? If not we can sue you!".
Of course, people didn't take too long to develop a replacement format called "PNG" for PNG's Not Gif <laughter>, which uses the gzip compression algorithm. which, by the way, does better data compression - makes smaller files than LZW. and we started saying to people "stop using GIF format - switch to PNG format". And what happened? Not much. <laughter>
The users said "we can't use PNG format, the browsers don't display that". And the browser developers said "well, we could implement PNG format but no users are asking for that". What you see is the difficulty of avoiding something that's a de-facto standard. GIF is a de-facto standard. When a de-facto standard is patented you're in real trouble.
It's not just de-facto standards that get patented, because JPEG which is an official standard released by a standards committee is also perhaps covered by a US software idea patent and people are getting sued right now. The standards committee says they don't think the patent really covers the standard, but nothing guarantees the court will agree. Who knows what will happen?
GIF is actually covered by two patents: both covering the LZW data compression algorithm that was patented twice. Now, that's not supposed to happen but it does, and the reason it happens is that the two patents are not written in the same way. You have to look at them and think about them carefully to see that they are both covering the same computation. Now if they were patents on some kind of chemical process you could say, you could have a quick way to see if you need to think about them, because you could ask yourself "are the same chemicals going in, are the same chemicals coming out? Hmm, if they are the same I guess I'd better compare these". But there's nothing like that to help you comparing these two patents on different ways of describing the same mathematics. Fact is, you could describe the same mathematics in ways that don't look exactly the same at first sight. only when you think about them do you see it's the same mathematics. And the patent office doesn't have time. I'm not going to say that some patent examiner did this because he was stupid - the fact is they have only 17 hours per patent application, and they don't have time to take this application and every other application and spend a lot of time comparing them.
This isn't the only data compression algorithm that's been patented twice, remember that program that was killed off a week before we released it? That algorithm got patented twice too.
One or two patents covering a de-facto standard is actually a "lite" version of the problem. Look at the MPEG-2 video standard. That's covered by 39 different US software idea patents at once! The negotiations to arrange some way that someone could license all those patents took longer than the development of the standard itself.
And people from the committee that produced the JPEG standard were trying to work on a new version but they say that software idea patents make prospective standardisation essentially impossible.