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Patently Ridiculous: Notch vs Barry Bumgardner

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Annoying news: Uniloc, a company known for spurious software patent claims, is making a spurious software patent claim against Minecraft, as well as against EA, Gameloft, Halfbrick (Fruit Ninja), Laminar (X-Plane) and Square-Enix.

Wonderful news: the lawyer representing Uniloc is called Barry J. Bumgardner. I’m told that name doesn’t raise so much as a smile in the US (where it’s very common and derives from the German ‘Baumgartner’ rather than from someone who gardens in bums for a living), but I can assure you that, in the UK, it’s basically the funniest thing I’ve ever heard.

‘Bum’ is another word for ‘backside’ or ‘behind’ or ‘buttocks’ or ‘ass’, Americhums. I really wouldn’t like to suggest what sort of activities someone who gardens inside bums (or indeed any other human orifice) might do – I just know that it’s bloody hilarious, doubly so when paired with ‘Barry’, and makes it even harder to take an already ridiculous claim seriously.

The ‘claim’ concerns a 2005 patent concerning “a system and method … for preventing unauthorized access to electronic data stored on an electronic device”, which is being crudely forced into meaning license checks for Android games. Apparently Minecraft is guilty of doing this thing that everything does and has done for ages, although we can’t entirely be sure as Uniloc and Barry Bumgardner called it ‘Mindcraft’ in their legal missive. Bumgardner’s based in Texas, which is apparently the go-to place for companies looking to patent troll these days.

Luxembourg-based Uniloc has a habit of This Sort Of Thing, referring to itself as an IP ‘incubation lab’ for security software, and has previously snapped at the heels of big boys like Microsoft and small boys like stock photo sites, reports BoingBoing. Round here, we’ve got a name for folk like that. We calls ’em Patent Trolls. As with Tim Langdell, I genuinely struggle to understand how people who make their money by hunting for ways to screw over other people manage to look themselves in the mirror and feel anything other than disgust – let alone going all the way to pride and righteousness. It’s a profoundly different way of thinking about the world.

They definitely wouldn't find it funny

No public word from the other accused companies as yet, but Mojang’s Markus Persson isn’t taking his Bumgardening lying down. “If needed, I will throw piles of money at making sure they don’t get a cent” he claimed on the Twitters, before publishing a longer post declaring his great disdain for software patents:

“A common argument for patents is that inventors won’t invent unless they can protect their ideas,” he wrote. “The problem with this argument is that patents apply even if the infringer came up with the idea independently. If the idea is that easy to think of, why do we need to reward the person who happened to be first?”

He acknowledges that “there are areas which are very costly to research, but where the benefits for mankind long term are very positive. I would personally prefer it to have those be government funded (like with CERN or NASA) and patent free as opposed to what’s happening with medicine, but I do understand why some people think patents are good in these areas”, saving his ire for “trivial patents, such as for software.” These, he feels, slow down the march of technological progress and pointlessly drag companies into expensive, time-consuming lawsuits.

It’s a tough one, innit? It’s very hard not to feel that copyright and patent law has gotten itself, and society, into a terrible state, where greed and over-defensiveness leads to constant legal action which no-one truly benefits from, but on the other hand you have all the dodgy, cynical clone games on the app store and elsewhere that really do seem to be directly snatching food from the mouths of indie developers. The current setup seems far too geared towards abuse from nitpicking patent trolls like Uniloc, and not enough towards protecting those who actually create. But imagine the horror, the potential for yet greater abuse, if laws for the latter did somehow come to pass. (I know I’m wildly conflating patents and copyright, but it’s all part of the same horrible mess to my mind).

Specific systems can be patented, programming can be protected and common language words can be ringfenced off for exclusive use, but the game ideas that contain such things cannot. The whole concept of innovation and who owns ideas in games is an extremely difficult one – the vast bulk of the industry past and present was built on the shoulders of others’ creations, after all. Too much restriction and there’s a terrible chance innovation will be subsumed by fear.

I wish my job didn’t involve irregularly reporting that company x is suing company y because element or name z is a little bit similar to to something they own. How tedious. How pointless. How much misery and waste these laws can bring about. Rip it up and start again, say I.

You can read the full claim made against Mojang in this here PDF.

Haha. ‘Bumgardner.’

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Alec Meer

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Co-founder of RPS. Dungeon Keeper & X-COM 4 Life.

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