Patents and intellectual property protection were in the news in June. First came Microsoft’s claim that violated some of its patents. Then came Salesforce’s countersuit that Microsoft created SharePoint on the back of its patents. (Not to mention the U.S. Supreme Court ruling in the Bilski case that cleared up… well, nothing.)

In its filing, Salesforce claimed that SharePoint clearly works in a way that violates its patents, and that Microsoft should have known that risk. Salesforce did not reveal specifics about which patents were violated.

While it’s easy to look at this as the actions of two petulant children, each looking to hurt the other, do not doubt for a second that this is serious business. Salesforce went so far as to hire David Boies, who successfully litigated the U.S. Justice Department’s anti-trust case against Microsoft.

Each will spend big money fighting these cases (we needn’t run a benefit for either company), but the real losers ultimately will be the users of their products. If the courts rule that either violated the other’s patents, the companies will be ordered to stop offering up their products until the patent offenses are removed. That will result in changes to the software that could break from the current versions, and things that once worked well might not work so well, or even at all. Kludgey fixes will be offered, and the whole implementation becomes tenuous.

All because these companies use their patents as weapons. Companies such as IBM, Microsoft, Oracle and many, many more boast of winning thousands of patents per year, making it virtually impossible to keep up with what’s patented and what is not. Then, when they see another company trying to enter into their competitive market space, they review the software and find patent violations to block the companies out, keeping a greater market share for themselves.

The courts have been no help in dealing with this issue. Some argue the U.S. Patent and Trademark Office needs to do a better job defining what is and is not patentable. Others say the courts need to make that clear. The recent ruling in the Bilski case took such a narrow view of patents that it did nothing to clarify matters.

Until someone in government has the backbone to stand up to these big software companies and define what the patent rules will be going forward, these types of bullying lawsuits and countersuits will continue unabated. The companies won’t suffer too badly, but their customers surely will.

— David