The patent fight over Android is leading to an inescapable conclusion.
Google has a business problem that demands a political solution.
The problem here is software patents. More precisely, business method patents encoded in software.
Ever since the State Street case of 1998 it's been open season for patenting business methods through software.
Before State Street, software patents were highly limited. You had to tie the patent claim to a particular device. Software might control a patented machine, but it was the machine that was patented, not the software. Certainly not what the machine did.
State Street changed this. By making methods of doing business subject to patent, all someone had to do was implement a business method through software and run to the patent office. This was made worse by the normal patent game of getting narrow protections through the patent office, then making broad claims for those patents in court.
That's what has happened to Android. Just about anything you could do in a smartphone has been patented. It doesn't matter that the Android design is based on Linux. In fact, Microsoft claims it has patents on Linux, which was created in the early 1990s out of Unix, a technology from the 1960s.
What has changed and why this matters can be seen by looking at a business that is very much pro-patent and built on patents, medicine.
Zocor is a statin. Lipitor is a statin. They are slightly different compounds, with slightly different properties, but they both have the same aim, which is to lower the cholesterol level in the blood, thereby reducing the risk of heart attack and stroke.
Statins were created in the 1980s, long before the State Street case. But if the State Street precedent held in medicine, then Zocor could have won protection for all statins, suing Lipitor and other drug companies out of the market. The result would have been a single drug that doesn't work at high doses without enormous side effects – the breakthrough of Lipitor was to test it at 80 milligram doses and prove its safety at that level.
In a State Street world the same would be true for antidepressants, and other classes of drugs. The first to file a patent would be the only drug of its type available until the patent expired.
Is that progress? Is it innovation?
Well, that's what we now have in software. And this isn't a problem caused by Congress, or some power-grabbing President. It was created by courts. And not even, really, by the Supreme Court, but by a lower court, the nation's top patent court.
It was a stupid decision whose consequences had been foreseen by previous courts, even the Supreme Court in the 1981 case of Diamond vs. Diehr.
The rule should be simple. You can patent a mousetrap, but not the idea of catching mice. You must be able to invent around a patent or patents lose their meaning – they halt innovation instead of encouraging it.
It's unfortunate that Google waited until it was bound, like Gulliver, by its business rivals before figuring all this out. But it's a problem for anyone writing software, and thus anyone seeking to innovate in a software-driven world.
The aim of the Google Party should be to revisit State Street, to narrow its focus, and to insist on a mousetrap test for patents. Unfortunately, this aim will be fought by all Google's main rivals in the business, because they are advantaged by holding Google down with patent claims. Not to mention the patent bar, which has been made rich by the Roberts Innovation Tax, spawned by the courts' refusal to address this question in Bilski vs. Kappos.
Thus, Google must make an appeal to the people. It has to do more than organize. It has to become active in politics, against other tech companies, fracturing the former united front the tech industries had in Washington, and in the political world.
Google will start this effort in a very bad position. Not only is the entire Republican Party united on behalf of “old money,” but so is much of the Democratic Party. To win its point, Google has to make strategic alliances with the Democratic Wing of that party, and police that wing to make certain its members aren't back-sliding, as they often do in Washington, once they get there and realize that the path to re-election leads through industry-funded cocktail receptions.
But that's OK. This is a good debate to have. Google's participation in serious politics will be good to have. And for candidates running against entrenched industry interests, Google's money will be very nice to have.
