Software Patents Rear Their Ugly Head in Japan

Steven J. Searle

Web Master, TRON Web

Richard M. Stallman warned us about them at the Takeda Award 2001 Forum. He bluntly stated that Japan shouldn't allow software patents like the U.S. had, since they could easily be used by large companies to extort money and/or technology from smaller companies. In addition, he also pointed out that software patents would stifle innovation, since software applications like musical compositions are based in large part on ideas that have come before. However, in February of this year, 2005, even general news readers were exposed to a series of stories (here, and here) about a software patent fight between Justsystem Corporation, a Tokushima-based Japanese-language word processor developer, and Matsushita Electric Industrial Co. A Tokyo court has ruled that the software patent in question, JP2803236 applied for in 1989 and granted to Matsushita in 1998, has been violated by an on-screen help icon in the tool bars of Justsystem's Ichitaro word processing and Hanako graphics programs. When the icon is clicked, the application goes into help mode and every icon subsequently clicked gives an explanation of itself.

Justsystem argued in court that the patented technology was "obvious," and, therefore not patentable. (I agree; it's trivial in the extreme, something even a very young child could devise.) They also argued that it is a basic feature of Microsoft Corporation's operating system--there is a "question mark icon" on the tool bar--but that claim was also rejected. (Don't worry about Microsoft being sued by Matsushita, the former would quickly cut off the latter's access to its operating system, and that would be the end of their personal computer sales.) They might have also argued that there is prior art, since Apple Computer Inc. long ago introduced a "balloon help system" to explain things to users who didn't like reading computer manuals. Previously, Justsystem used a "question mark" character in its tool bars to invoke the function, but they switched over to a snazzier icon. Apparently, a character is okay, but not an icon, so the whole mess can be cleaned up with a software patch. Since Matsushita is a hardware, and not a software, maker, they obviously cannot claim damages for lost sales as a result of any infringement.

So what's going on here? I wish I knew, but one thing I do know is that both parties in this affair are interesting from the TRON standpoint. Justsystem is the local standard bearer of Unicode, which as everyone knows is an American industry character code standard forced on an international organization, and which thus masquerades as an "international standard," i.e., ISO/IEC 10646. Matsushita Electric is a Japanese hardware maker that twice announced that it was going to market BTRON-based computers for educational use (PanaCAL ET and Tea Terminal), and twice backed off--once under very overt foreign pressure, which leads one to wonder if there wasn't some sort of behind-the-scenes pressure in the second case. Since, as mentioned above, Justsystem could easily avoid further litigation with a simple software patch, and, furthermore, as there is no economic loss to Matsushita Electric as a result of the so-called patent infringement, one has to wonder why Justsystem has decided to appeal the case to a higher court. Needless litigation is not the sign of enlightened management in any country.

And so, I get a funny feeling from what's going on here. The funny feeling I get is when I consider this case from the point of view of an American software company sitting on a pile of junk software patents issued by the U.S. Patent and Trademark Office, which has disgraced itself by issuing vast numbers of software patents for software ideas that are equally trivial or clearly not patentable due to "prior art." Imagine a "question mark icon" being declared "intellectual property" by the Japanese supreme court. American software companies would throw a fit and demand that American courts protect them from potential Japanese intellectual property blackmail by acknowledging their junk patents as well. Japan the vassal state would once again be portrayed in the mainstream American media as Japan the evil conspirator. Thus U.S. courts would have the motive, an honorable and noble motive to save America, that would ultimately lead to cementing into place the concept that computer software ideas can and should be patented. Oh, and just for good measure, they'd probably throw a little national security justification, too.

Why am I so cynical? Well, perhaps it's that I can remember the antitrust case against Microsoft. Microsoft suffered a massive defeat at the lower court level at the hands of Judge Thomas Penfield Jackson, who Microsoft had asked to decide on the case in lieu of a jury trial. Then, exactly as many expected, Microsoft was rescued by sympathetic judges at a higher level appeals court, who surprisingly let some of the lower court's findings stand. Microsoft was guilty as charged of multiple violations of antitrust law, but the penalty was too severe, the appeals court ruled, and so that was reduced to a wrist slap. The ultimate result was that the Microsoft monopoly and its egregious business practices got to remain in place. In fact, they were cemented in place by the courts. The only real challenge that can be mounted against Microsoft and other large software companies is through the open systems movement, and that's who the software patents are ultimately aimed at. If a question mark icon that turns on a desktop help function can be patented, any software idea can be patented. I hope I'm wrong, but that's where this case seems to be headed..