12.10.08

The Patent System is Broken.. and How NOT to Fix It

Posted in Finance, Free/Libre Software, GNU/Linux, Microsoft, OIN, Patents at 7:57 am by Dr. Roy Schestowitz

Mathematics

On Maths You Can’t use

I‘LL be doing an interview with the CEO of OIN following this umbrella’s announcement of an initiative called “Linux Defenders”. Groklaw has the details.

The Open Invention Network, the Software Freedom Law Center, and the Linux Foundation have teamed up to create another tool to defend Linux from patents. It will be hosted by the NYU Peer to Patent folks, where Mark Webbink is now. It is called Linux Defenders, and that would be you, in that they are asking folks to provide prior art to block anyone else from patenting it. Over time, this could be very significant as a protective wall. Essentially, as I understand it, it works like this: Since it costs a prohibitive amount of money to file for patents, the workaround is defensive publication. That results in prior art which can then block patents on that prior art. Brilliant, my dear Watson. No kidding.

In an article that relates to this previous one from Monday, some more details are made available. (subscription is required though) and Slashdot has this summary:

An anonymous reader lets us know about a new initiative designed to help shield the open source software community from threats posed by patent trolls. The initiative, called Linux Defenders (the website is slated to go live tomorrow, Dec. 9), is sponsored by a consortium of technology companies including IBM.

This initiative still fails to properly address the issue of patent trolls, the solution to which is only a serious reform or elimination of software patents. Over at TechDirt, Mike explains part of the issue at hand:

[M]any patent holders bring lawsuits on technologies that are pretty far from what’s in the claims — usually hoping that the accused will settle rather than take the issue to court.

This is why even poor patents are difficult to defeat. Having them reexamined is expensive (c.f. Firestar for details [1, 2, 3, 4, 5, 6]).

As to OIN’s approach, this old interview with Jerry Rosenthal (previous CEO of OIN) highlighted a flaw:

Glyn Moody said: “Typically, patent trolls don’t have any products, so they are unlikely to be infringing on any of your patents. Isn’t that a problem for the OIN approach?”

The reply from OIN was sincere: “Very clearly there’s not much we can do with regard to patent trolls.”

We will hopefully have some more reassuring answers from the current CEO. One person suggested that we ask:

You said in an interview to LinuxJournal that “there is clearly not much we can do with regard to patent trolls”. You are also supporting high quality patents. Does OIN’s defensive approach work with a patent troll suing Linux with a portfolio of multiple high quality patents?

We are not alone in our skepticism of patent pools and ‘umbrellas’ of portfolios. They fail to tackle some of the worst villains out there, some of whom can operate on behalf of companies like Microsoft. Here is what Radu wrote in his latest rant about this subject:

RE: A no-fly zone to protect Linux from patent trolls, where the OIN CEO says: «We’re not anti-patent by any stretch of the imagination. More patents is fine with me, as long as they’re high quality. Quality is the drum we beat.» This is 100% bullshit. If it’s about “quality software patents”, then the OIN is favoring software patents! (But I knew that Linux is suicidal.) OTOH, I personally believe that not only software patents should be voided, but all kind of patents. We’re having too many patents — idiotic and obvious or not —, so that any inventor should probably pay too much just to check if his work can be considered as original or if he has to pay royalties to someone else! This is severely discouraging innovation IMNSHO. Heck, even the straw dispenser at McDonalds has a patent number on its top cover! In the 21st century, one would expect that ideas that could come to a 3-y.o. kid are not covered by patents, but they are.

Intellectual Monopolies in General

The rant above extends dissatisfaction beyond just software; this is not something new and many even consider this point of view rather conventional. One of our readers points to this new article which challenges or at least questions the effects of excessive restriction.

There are plenty of good ideas that we read about every day that will substantially increase the quality of our lives. Imagine for a moment that we find out we can easily harness Solar Energy for our energy requirements. In order to make it technologically feasible, considerable research needs to go into it. This research needs money. I can imagine Oil Companies being very interested in this research. Not in order to further it, but to throttle it. Nothing could be simpler for them, than to talk to one person, buy his or her patent for their latest invention, and let it collect dust on the shelves.

[...]

Another example is how major corporations like the RIAA are trying to throttle p2p. The RIAA would be exceedingly happy if the entire Bittorrent technology was scrapped, along with all the good that comes of it. But why go so far? The RIAA claims that even ripping CD’s to your harddisk is illegal. They would be happy if that technology was scrapped as well.

Here is another discussion about this subject in light of the deep recession.

Can the business practices of the 1930s yield useful lessons for executives setting priorities in today’s uncertain and evolving environment? For investments to promote innovation, the answer may be yes. Executives are often told to maintain investment during downturns. It’s easy to question this countercyclical advice, however, in times like the Depression or the present, when the volatility of financial markets (an indicator of uncertainty) reaches historic highs. Is the typical behavior of executives—act cautiously and delay investment projects until confidence returns—the wiser course?

Many companies hesitated to innovate during the 1930s. Consider, for example, patent applications as a proxy for resources devoted to innovation.

As the existing crisis was created mostly due to imaginary property, the last thing the economy needs is more of it.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

17 Comments

  1. Shane Coyle said,

    December 10, 2008 at 9:17 am

    Gravatar

    Stockpiling spurious patents isn’t okay, regardless of espoused intent or if it’s on ‘our side’; Software patents and method patents are not valid, any actions other than their wholesale repudiation is unacceptable and counterproductive, imo.

  2. Jo Shields said,

    December 10, 2008 at 9:25 am

    Gravatar

    But given the USPTO doesn’t care about prior art, doesn’t the current system invite being sued by trolls if you *don’t* file things left right & center?

  3. Roy Schestowitz said,

    December 10, 2008 at 9:27 am

    Gravatar

    Filing patents wouldn’t help you against trolls. They have no products.

  4. AlexH said,

    December 10, 2008 at 10:09 am

    Gravatar

    Nothing helps against the “trolls” though. Because you can’t defend yourself against them doesn’t mean you should leave yourself defenseless against everyone else.

    “Troll” cases make the most noise, but they’re not the most numerous by a fair way, since most patents are in the hands of actual product-producing businesses.

  5. Roy Schestowitz said,

    December 10, 2008 at 10:13 am

    Gravatar

    Never forget that trolls sometimes operate (secretly) on behalf of larger companies that target “product removal” or grievance for competitors.

  6. Shane Coyle said,

    December 10, 2008 at 10:36 am

    Gravatar

    Let me be clear, I haven’t any problem with valid patents on devices, just software patents which aren’t.

    Also, it’s important to properly establish this ‘intellectual property’ that many of these large software companies claim to own is worth nothing, kinda like those mortgage-backed-securities the US financials were claiming as tremendous assets and turned out to be junk.

  7. AlexH said,

    December 10, 2008 at 11:02 am

    Gravatar

    @Roy: I think that’s mostly an unjustified fear.

    Patents have holders, and only the holder of the patent can prosecute it. If a large company transferred those patents (and shareholders don’t like that, as a rule!), they would no longer be in control of them. If they were still in control, they can still be bargained with. Trolls hold only a very small proportion of the overall patent pool, no matter how they got the patent.

    @Shane: things, physical or not, are only worth what people will pay for them. You can make the same argument about practically any good. A car is no more worth $10,000 than a software patent or deed to a plot of land on the moon.

  8. Shane Coyle said,

    December 10, 2008 at 11:14 am

    Gravatar

    Some folks invest in these companies because of their supposed ‘ip’ portfolios, it will be instructive to see how these companies should fare if it were to be widely known that much of their ‘assets’ are worthless – then, all of a sudden, folks look harder at profitability and innovation and sound management and perhaps invest elsewhere…

  9. Shane Coyle said,

    December 10, 2008 at 11:17 am

    Gravatar

    Oh, and a car is a valid car and can be used as such, a software patent isn’t a valid patent and can only be used to heat your office if you print it out and burn it.

  10. Roy Schestowitz said,

    December 10, 2008 at 11:22 am

    Gravatar

    A car is no more worth $10,000 than a software patent or deed to a plot of land on the moon.

    You’re totally ignoring issues of duplication and scarcity. Why limit human knowledge?

  11. AlexH said,

    December 10, 2008 at 11:31 am

    Gravatar

    @Roy: I’m not ignoring them at all, it’s irrelevant to the point I was making, which is that the value of something isn’t intrinsic in any way, for any good.

    @Shane: sure, that’s a value a car has to you. That’s nothing to do with the value it has for other people, though.

  12. Roy Schestowitz said,

    December 10, 2008 at 12:01 pm

    Gravatar

    AlexH,

    It sure is relevant. Think about how the RIAA tries encouraging the perception that no music is free and nothing but copyrights exists in the arts.

    Knowledge monopolies have centuries in a history of suppression.

  13. AlexH said,

    December 10, 2008 at 12:17 pm

    Gravatar

    @Roy: no, it’s not relevant, it’s completely and utterly beside the point.

    Shane said they have no value. I’m pointing out that nothing has any intrinsic monetary value. You’re making some argument about knowledge scarcity which is irrelevant; value and scarcity are completely different concepts (example: people buy bottled water particularly in urban areas, where fresh water is about the least scarce thing available).

    Things are (only) worth what people are willing to pay. If you want to argue about another point go ahead, but it’s not related to anything I’m discussing.

  14. Shane Coyle said,

    December 10, 2008 at 12:26 pm

    Gravatar

    As usual, I think we agree mostly. My point is that software patents aren’t valid, and are therefore worthless. Once that knowledge becomes more commonplace, market forces will set the value, so to speak.

  15. AlexH said,

    December 10, 2008 at 12:39 pm

    Gravatar

    Oh, absolutely, and I think In Re Bilski (to cite it properly ;) ) is doing that already to a large extent.

  16. Roy Schestowitz said,

    December 10, 2008 at 12:51 pm

    Gravatar

    There are companies that still resist change. Take IBM for example.

    IBM is well aware that its investment in software patents is an investment in a bubble that won’t necessarily generate any profits, but there is still a battle out there for perception among the public.

    Some of the seniors at IBM continue to defend software patents (or escape the questions from critics altogether) and later on they ‘contribute’ imaginary assets in what they call a “pledge” or a “promise”. It’s like the MAFIAA taking people’s rights away and then selling them back.

    IBM is unlikely to be the company that will ‘turn the table’ so to speak or let people know that it has just two 2′s, 3′s and a 5. It keeps its poker face, so it won’t come out with a confession. If you can make people believe something is worth a lot (much like branding, a la Coca Cola), then respect remains.

    Patents are also mechanisms for price-fixing and artificial elevation of cost. We don’t need that applied to mere thought.

  17. An Examiner said,

    December 12, 2008 at 4:17 am

    Gravatar

    As an examiner, I always get a kick out of folks who rail software patents. Then you ask them for the definition of a software patent and they can’t tell you, or say it’s a patent that ‘claims software’. And then you politely inform them that nothing that ‘claims software’ is ever issued.

    What you mean to say, instead of ‘software patent’, is ‘functionally claimed patent’. Back in the stone age, people defined inventions by their structure, because structure determined functionality. So patents made claims to structurally different inventions. By doing this they got coverage over any extra functionality the structurally novel object performed.

    Now that we’re out of the stone age, however, people define inventions by their functionality. Why? Because with a computer related invention, structure doesn’t define anything. So patents make claims to functionality, because a) structure doesn’t matter for general enablement, and b) any variation in structure would be obvious. And now they get coverage over any structure that their functionally novel object can be enabled with.

    If you’re against functionally claimed patents, then you need to step back and rethink how you view the patent system and why it exists. It’s designed to promote innovation via disclosure while providing protection to the inventor. The fact that so many patents are filed nowadays with functionally claimed computer related inventions means that it is, in fact, promoting innovation via disclosure.

    As far as protecting open source Linux material, publications are the route to go. Create one standardized group that publishes every new feature about Linux. Patent trolling is a function of patent quality. Patent quality is a function of the examiner having easy access to the prior art directly relating to the claimed invention.

What Else is New


  1. Nine Documents About the Financial Siege Against EPO Staff (Past, Present, and Future)

    Today we release dozens of pages of letters and documents (internal to Europe's second-largest institution); they all focus on the betrayal and skulduggery, crushing staff in spite of what was originally promised (and what workers actually signed up for)



  2. EPO Senior Management (Cabal) “Essentially Deaf to the Proposals From Staff Representatives.”

    Representatives of EPO staff feel like the management of the EPO is "deaf" and uncaring; there's hardly any meaningful progress (or none whatsoever) when it comes to truly honest dialogue with real participation



  3. EPO Management, Led by António Campinos, Attempted to Stifle or Prevent Staff From Being Surveyed

    Battistelli's cabal, which covers up a lot of fraud and corruption, is attempting to prevent the staff from expressing an opinion (for insiders and perhaps outsiders to assess) because things are really bad and autocratic measures are seen as necessary to keep the lid on issues/abuses



  4. The European Patent Office's Central Staff Committee: Office Cannot Recruit Fit-for-Purpose Patent Examiners Anymore

    One third of EPO recruits are 'locals' (Germans), 0.2% are Swiss, 1% Scandinavian; the EPO as an employer became unattractive and it's unable to attract the staff it needs (as was projected and planned when the EPC was agreed upon)



  5. IRC Proceedings: Friday, November 27, 2020

    IRC logs for Friday, November 27, 2020



  6. Links 27/11/2020: Jolla is 7, Diffoscope 162, MNT Reform Production

    Links for the day



  7. The Time Coronavirus Helped EPO Management Prevent Staff From Protesting and Going on Strike (March 26th)

    "In view of the spreading of the New Corona Virus, the planned General Assemblies have to be cancelled," the Staff Union of the European Patent Office (SUEPO) wrote in the wake of the crisis across Europe back in March (weeks ahead of a planned strike)



  8. Guarding Your Privacy With E2EE: Primer

    "As with all security, there is assumed risk no matter how careful you are. There are no security guarantees but that doesn't mean you shouldn't try."



  9. Links 27/11/2020: Systemd 247 and Cockpit 233

    Links for the day



  10. A Free Speech Deficit Harms Software Freedom

    Free software and Software Freedom cannot possibly succeed if we keep accepting or even just tolerating systematic censorship of opinionated people in our community; failing to speak out on this matter (for fear of supposedly offending someone, risking expulsion) is part of the problem — complicity by passivity



  11. Perception of Difficulty

    New poem by figosdev



  12. IRC Proceedings: Thursday, November 26, 2020

    IRC logs for Thursday, November 26, 2020



  13. Cartoon: After Gambling With Workers' Savings the EPO Can Do Real Estate

    New EPO cartoon from EPO insiders (the one on the right certainly looks a lot like António Campinos and the one on the left can be his EUIPO ‘import’ or Benoît Battistelli‘s INPI ‘import’)



  14. Free as in Freedom Should Not be Associated With Cost

    It's important to remind people that so-called 'free' services (Clown Computing, centralised spaces that 'farm' their so-called 'users') aren't really free; we need to advocate freedom or free-as-in-freedom alternatives



  15. [Meme] UPC's Pyrrhic Victory

    Contrary to what Team UPC says, what happened earlier today is hardly a breakthrough



  16. Many Thanks to Free Software, the Demise of Software Patents (in Europe and the US), and So Much More

    On a positive note we're heading into the end of November, one month before Boxing Day; we take stock of patent affairs that impact software developers



  17. Links 26/11/2020: PHP 8.0, Proxmox VE 6.3, UNIGINE 2.13

    Links for the day



  18. 29,000 Blog Posts and Recent Site Improvements

    Over 29,000 blog posts have been posted here, but more importantly we've made the site a lot more robust and resilient, accessible in more formats and protocols (while improving transparency, too)



  19. [Meme] Trump is Out. Now It's Time to Pressure the Biden Administration/Transition Team on Software Freedom Issues.

    The Biden transition is in motion and tentative appointments are underway, based on news reports (see our Daily Links); now is the time to put pressure, e.g. in the form of public backlash, to ensure it's not just another corporate presidency



  20. Boycott ZDNet Unless You Fancy Being Lied to

    ZDNet's Catalin Cimpanu continues to lead the way with misinformation and lies, basically doing whatever he was doing to land that job at ZDNet (after he had done the same elsewhere)



  21. The UPC and Unitary Patent Song

    On goes the UPC symphony, as the Unified Patent Court (UPC) is almost here, always coming "real soon!"



  22. Open Letter to the German Greens on UPC and Software Patents: Don’t Betray Your Voters and Your Promises, or You Will Regret it

    Dear Members of the German Greens in the Bundestag. By Benjamin HENRION.



  23. [Meme] One Step Away From Replacing Patent Examiners With 'Hey Hi' (AI)

    If it's not legal for 'Hey Hi' (AI) to get a patent, why should it be legal for patents to be granted by those who are invisible (and sometimes in de facto house arrest)?



  24. European Patent Office (EPO) Reduced to 'Justice Over the Telephone' and Decree by E-mail

    The EPO is trashing the EPC and everything that the Office was supposed to stand for, as it wrongly assumes demand for monopolies (typically from foreign corporations) comes before the rule of law and Europe's public interest



  25. Making Free Software Work for Users

    The latest reply to a non-developer concerned about software freedom; guest post by figosdev



  26. IRC Proceedings: Wednesday, November 25, 2020

    IRC logs for Wednesday, November 25, 2020



  27. Links 26/11/2020: AV Linux 2020.11.23 and Blender 2.91 Release

    Links for the day



  28. Links 25/11/2020: GamerOS and Biden Transition in Motion

    Links for the day



  29. An Orwellian December

    With December around the corner and states tightening the screws on the population (or employers on employees) at least we can look forward to spring



  30. The Non-Technical (or Lesser Technical) Software User That Wants Software Freedom

    Assuming that Free software should care about what users — not only developers — really want (and need) it’s important to understand how they view the current situation (with growing waves of corporate takeover and compromises, even expulsions)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts