Software patents affect innovation

Two stories are highlighting the problem posed by software patents. The first is an article in Groklaw by Marten Mickos, the CEO of the popular open source database software MySQL. Mickos is concerned that there software patents have poisoned the environment for all sorts of developers. He comments that:

Many companies apply for software patents for defensive reasons, thinking that if someone challenges them with a patent, they can retaliate with their own patent portfolio. But today the software industry is seeing a new breed of companies - so called patent trolls -– that have no other business than acquiring patents and then extracting royalties from other businesses. No patent portfolio will help against a troll, because they have no production or sales of their own that you could threaten.

His comments come after the blogoshpere is outraged by the latest silly software patent claim, that of company Scientigo, which owns software patents 5,842,213 and 6,393,426, which describe a claim for a method for modeling, storing, and transferring data in neutral form. Scientigo claims that XML infringes these patents, and they are "in talks" with large software users. Office applications like Microsoft Office use XML, so I can imagine that Microsoft is afraid that it may be infringing. Of course, the claim by this company is preposterous, but they own the patent, and it will take a lot of money to either fight it in court or attempt to invalidate it. What will happen is that Scientigo will extort billions of dollars from software developers (proprietary and non-proprietary) through the licensing of XML. The fact that XML predates the patents seems not to bother Scientigo, who sounds smug and confident in this interview. The problem is that as far as I can tell, Scientigo does not produce anything, it seems to be just another patent troll.

Who loses in these cases? Developers, obviously, but also the consumer.