07.30.10

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Lawyers and Monopolies They Work for Are the Key Threat to Software Patent Policy

Posted in Microsoft, OIN, Patents at 3:08 am by Dr. Roy Schestowitz

Quentin Massys painting
16th century painting of a civil law notary

Summary: Patent lawyers and software giants whom they are representing (also lawyers that become patent trolls) jeopardise emerging companies, almost all of which do not want software to be patentable

“Microsoft lobbyists [are] pushing for software patents in standards,” alerts the FFII’s president regarding this post from a familiar lobbyist we wrote about in this post and cited in [1, 2]. It’s always aligned with Microsoft’s agenda.

The USPTO is looking for feedback about post-Bilski guidelines and Groklaw rightly warns that solicitors would stuff the box (they have the tendency to do that when it comes to software patents in standards).

You know pro-patent companies’ lawyers in droves will be telling them that their clients should be able to patent God’s method and process for creating the heavens and the earth, so you may wish to comment yourself and let them know politely where you think the line should be drawn on the abstract idea exception to subject matter eligibility as set forth in Bilski, if this is a topic you care about. Otherwise, I can see it now, their report: We got 3,201 comments saying X and only 3 saying Y, so X carries the day.

The truth is, I don’t think anybody knows specifically what Bilski means, including the US Supreme Court. They couldn’t draw a straight line, because they couldn’t agree on enough, so they just didn’t. So what is the USPTO supposed to do with it in the real world? They give it their best shot.

Groklaw’s Pamela Jones used to defend the practice of patenting (maybe because of her background in the legal world), but she changed her mind over time. There is a great deal of indoctrination among lawyers, who are teaching and convincing themselves that patenting is beneficial to society (but they actualise their own meta-industry really). Dana Blankenhorn wrote about Groklaw and he defends/disputes its belief that OIN is necessarily a good thing (OIN is a proponent of patents):

When the subject of patents and cross-patent consortia comes up everyone is a troll.

Pamela Jones is an IBM troll. Florian Mueller is a Microsoft troll. It must be true because their enemies say so.

IBM and Microsoft both have patent consortia. IBM’s is organized as the Open Invention Network. Microsoft’s is a contract, the one first signed by Novell and since by many others.

[...]

Mueller calls OIN a “patent trap” and Groklaw’s acolytes have their own names for Mueller, most of which can’t be repeated on a family blog.

I think both sides are missing the point.

Absent legal clarity, or legislative action, this is the situation open source has to live with. It is a tax on innovation, which the Constitution sought to avoid. Of course, the Constitution also sought to avoid the direct election of Senators.

TechDirt is meanwhile catching up with the new study from Pamela Samuelson et al. [1, 2]. It shows that software firms are against patents and Mike’s interpretation is:

If a firm is venture-backed, it’s more likely to get patents, but this doesn’t appear to suggest that the patents are valuable. It seems to indicate that entrepreneurs still believe the old claim that venture capitalists want to see patents, so they feel the need to get patents just to show to investors.

On the whole, it certainly appears that the vast majority of the software industry isn’t interested in patents, don’t find them useful or important, and certainly don’t see them as creating an incentive. Even those who get patents don’t see much value in them, and appear to only get them because they feel pressured to get the patents for external reasons. All in all, this is a pretty damning bit of research for those who suggest patents help the software industry.

There is no real debate over software patents, not within software companies anyway. The issue was resolved a long time ago when proprietary and free/libre software companies alike decided that they don’t want patents; the exception is software monopolies with armies of lobbyists and lawyers, to whom they pay to continue to misrepresent commercial opinion and facilitate monopolisation through patents.

“Small Software companies cannot afford to go to court or pay damages. Who is this software patent system for?” —Marco Schulze, Nightlabs Gmbh

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