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

Dr. Roy Schestowitz

2008-12-10 12:57:14 UTC
Modified: 2008-12-10 13:05:24 UTC

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. ⬆

Comments

Shane Coyle

2008-12-10 14:17:18

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.
Jo Shields

2008-12-10 14:25:43

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?
Roy Schestowitz

2008-12-10 14:27:12

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

2008-12-10 15:09:20

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.
Roy Schestowitz

2008-12-10 15:13:37

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

2008-12-10 15:36:54

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.
AlexH

2008-12-10 16:02:43

@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.
Shane Coyle

2008-12-10 16:14:15

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...
Shane Coyle

2008-12-10 16:17:15

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.
Roy Schestowitz

2008-12-10 16:22:17

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?
AlexH

2008-12-10 16:31:40

@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.
Roy Schestowitz

2008-12-10 17:01:27

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.
AlexH

2008-12-10 17:17:30

@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.
Shane Coyle

2008-12-10 17:26:44

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.
AlexH

2008-12-10 17:39:38

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

2008-12-10 17:51:56

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.
An Examiner

2008-12-12 09:17:30

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.

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

On Maths You Can't use

Intellectual Monopolies in General

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