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2006-04-08 Patents

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KevinMarks writes about PatentTrolls, giving some examples of how software patents made sure that “technology ready to ship was deferred pending legal agreement on more than one occasion”. (Marks worked on Quicktime, for example, so I assume he knows what he is talking about.)

He also links to a PaulGraham essay on SoftwarePatents: Are Software Patents Evil? I like it when he says: “When a company starts fighting over IP, it’s a sign they’ve lost the real battle, for users.”

I agree with Marks, however: Graham describes the situation quite well when it comes to startups and big companies (big companies don’t sue small companies, and small companies don’t sue each other) – big companies just threaten to sue each other in a kind of nuclear deterrence. This is how they prevent competition.

No, less of this kind of competition is bad for our economy, it is bad for users (that’s us). That would be the first reason to abolish the system. And there’s more. Graham talks about a critical aspect that will be more common in the future: Small companies usually don’t sue big companies over patent infringement because of the nuclear deterrence – the big companies will counter-sue and the smaller company will have to fold. But counter-suing only works when the smaller company works in the same field as the big company.

What if the smaller company is just a lawyer that bought the patents because another smaller company had to fold and sold its IP. Such a lawyer will probably not be violating any patent of the Microsofts and IBMs out there, and thus counter-suing will not work.

Those two points together make the entire system untenable.

So, what’s Graham’s take on these people, these patent trolls? He says:

Patent trolls are companies consisting mainly of lawyers whose whole business is to accumulate patents and threaten to sue companies who actually make things. […] Patent trolls seem to have caught big companies by surprise. In the last couple years they’ve extracted hundreds of millions of dollars from them. Patent trolls are hard to fight precisely because they create nothing. Big companies are safe from being sued by other big companies because they can threaten a counter-suit. But because patent trolls don’t make anything, there’s nothing they can be sued for. I predict this loophole will get closed fairly quickly, at least by legal standards. It’s clearly an abuse of the system, and the victims are powerful.

I certainly hope that the abuse will be stopped, and soon, but I don’t know how this will come about.

Graham then goes on to say that software patents “don’t affect innovation much, one way or the other.” That’s probably true. But they make life harder for everybody, and specially free software. It’s nice to know that the blades pointing at you will probably never budge, but it’s much nicer if you know that there are no blades. It’s better to know you have a right to develop software instead of hoping that others will not be interested in suing you.

Yes, secrecy is a problem. As far as I can tell, however, we have this kind of secrecy anywhere. I haven’t read many patent applications, but the few that I read where terrible to read. Not useful. Free source code and reverse engineering continue to be the methods of choice to prevent secrets. Patents are not helping.

So, what should be our first step? I don’t like revolutions, and I no longer believe in sweeping political changes. The state and its institutions were built to last, bureaucracy adds inertia to everything in order to make it stable, impervious to sudden changes. The first thing I suggest we do is reduce the protected time window.

Twenty five years is too much in the software industry. Even five years is like an eternity. Who wants software build on ideas five years old? But it would be a start. Reduce the protection to five years.

(I tried to WriteForSkimming – did it work?)

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