Frankly Speaking: Patent pain

03.04.2006
This is the way the real world works: A vendor creates a product that happens to use someone else's patented invention without permission. We buy the product. The patent holder sues the vendor. A jury decides that the product infringes the patent. A judge threatens an injunction to stop sales of the product. Then the vendor writes a big check to the patent holder for a license, changes the product so it doesn't infringe the patent or stops selling the product.

The first choice costs us money. (Customers are where vendors get the money for that big check, remember? They pay, so we pay.) The second and third choices cost us pain, effort, time and money.

And you know which one we always like better.

Case in point: On April 11, its next "patch Tuesday," Microsoft will ship out a patch that will break Internet Explorer. Not completely, of course; the only thing that will change is how IE handles "dynamic content" such as Flash animations and QuickTime video. Right now, that content can run automatically on a Web page. After the patch is applied, a "tool tip" dialog box will pop up first.

At least that's what will happen with Web sites that haven't been tweaked to handle the patch. Microsoft has been publishing work-arounds since last December, and Adobe and Apple have developed fixes of their own. Web sites and Web-based applications that have been adjusted will work the same as always. Only sites that haven't changed will break -- and then only a little bit.

Or so we hope.

Why is Microsoft doing this? Because in 1999, Eolas Technologies sued the company for patent infringement. In late 2003, Microsoft lost the lawsuit. Then it lost every appeal and failed in its effort to get the patent office to throw out Eolas' patent. For two and a half years, Microsoft has stalled on making changes to IE so it would no longer infringe. This month, the clock runs out, and IT shops that haven't already made their fixes will have to get ready for the pain, effort, time and money.

Now compare that with the finale of the recent BlackBerry scare. One day, millions of BlackBerry users were looking at installing a patch to change the way their e-mail was delivered. Then BlackBerry maker Research In Motion announced that it had paid US$612 million to patent holder NTP, and the problem was gone.

That seems like ancient history, doesn't it? But it was on March 3 -- exactly one month ago.

We like it when vendors wave a big check at a problem and make it go away. Sure, we'll foot the bill if it means the result is a clean, simple, effortless (for us) solution.

In contrast, we'll be dealing with the backwash from Microsoft's IE changes for months. We'll have to field help desk calls from users, train developers to write Web pages differently and upgrade tools so they no longer generate the problematic code. And we'll have to find and change all the places where we use Flash and QuickTime and other dynamic-media plug-ins.

If we're lucky, that's as bad as it gets. If not -- if our developers have done overly clever things that depend on the way IE used to handle this content -- we may have broken Web applications, have a lot more work on our hands and have business-side bosses screaming about online catalogs that are broken and orders that have stopped coming in.

No wonder we're happier when vendors throw money at problems to solve them.

Does all this mean Microsoft made the wrong decision by not paying off Eolas? Not necessarily. Microsoft chose to replace the offending technology after paying $521 million for past infringement. Nobody knows how much it would cost in the future for Microsoft -- in other words, us -- to do it the other way. But that choice is going to cost us a lot more than money.

And if you still have any doubts about why, in the real world, using a big check to make patent problems go away is so appealing -- well, we're all about to find out.

Frank Hayes, Computerworld's senior news columnist, has covered IT for more than 20 years. Contact him at frank_hayes@computerworld.com.