06.01.11

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Pressure is Mounting for All Software Patents to be Tossed Out, Even in the United States

Posted in America, Europe, Patents at 7:40 pm by Dr. Roy Schestowitz

The trolls’ office belongs in the graveyard

Patent Office - Herbert C. Hoover Building

Summary: Thanks in part to patent trolls, the reputation of the USPTO is disintegrating, more calls are being made for annihilation of all software patents, and Europe is meanwhile trying to mimic or inherit the mess from the USPTO (the trolls’ office)

THE Lodsys troll has been useful in the sense that it encourages people to actively call for the end of software patents. As more lawsuits get filed by this patent troll (Lodsys carries on with yet more lawsuits in Texas, of course), one venture capitalist says that “Enough Is Enough” and to quote him from his blog:

I believe that software patents should not exist. They are a tax on innovation. And software is closer to media than it is to hardware. Patenting software is like patenting music.

The mess around the Lodsys patents should be a wake up call to everyone involved in the patent business (government bureaucrats, legislators, lawyers, investors, entrepreneurs, etc) that the system is totally broken and we can’t continue to go on like this.

First of all, the idea of a transaction in an application isn’t novel. That idea has been resident in software for many years. The fact that the PTO issued a patent on the idea of “in app transactions” is ridiculous and an embarassment.

It’s important because the patent propagandists keep saying that a business cannot receive capital unless it has some patent monopolies to exclude rivals with. Several venture capitalists have been trashing this lie over and over again; the above is just one among several who speak about the subject repeatedly. This was also published in Business Insider, which adds in a separate article that “Software Patents Are Driving Fred Wilson To The Brink” and Pascal-Emmanuel Gobry says:

He’s absolutely right.

We’ve all know the problems with the patent system. Anything and everything gets patented without regard to the merit of the idea or who actually came up with it first (as opposed to filed it first). Patent trolls go wild, racketteering startups and innovators (the opposite of what the patent system was supposed to do, reward the little guy). Big tech companies amass patents like so many nuclear warheads in an unending, resource-swallowing Cold War.

Some people claim it’s better to “reform” the system than abolish it.

But that’s not true. At least for software, patents make zero sense.

A great example of a creative industry without patents is fashion. People copy each other all the time. Do fashion houses go bust? No. Do innovators go poor? No, they keep innovating at an even faster pace.

Software companies also copy each other all the time, and straight copycats don’t generally do well. (And when they do, it’s usually not just copying the idea, it’s also great execution–ain’t nothing wrong with fast followers, who bring competition to markets.)

Gizmodo too has just published this article about why software patents should not exist. To quote the opening sentences: “Patents are supposed to encourage invention and protect inventors from being ripped off. At least, this was the reasoning when patents applied to things like steam engines and drillbits. But software? That might be a whole other question.

“Patents were always intended for physical things—mechanisms that did something better in a way that would have never been obvious to another inventors. A genuine leap forward. The advent of software complicated things—and Microsoft’s immense commercialization of software pushed software patents forward at a blistering pace.

“Things like a single-click online purchase dubiously fit that great leap criterion—and it’s yielded a giant bundle of money for Amazon, which owns the patent on that button. If you try to use it without their permission, out come the lawyers.”

How foolish does the USPTO want to look? It does not represent the will of the people, although it might represent the will of selfish patent lawyers (the patent system was not originally for them). At this current pace, the USPTO risks a collapse, no just the loss of public support. Sadly, in the mean time those American monopolies it granted to companies like Microsoft are being exploited and exported to harm Europe too. Yet again we’ve gotten hold of a new document [PDF] from the European Commission, which foolishly enough endorses RAND. It says that “intellectual property rights essential to the implementation of specifications are licensed to applicants on a (fair) reasonable and non-discriminatory basis ((F)RAND), which includes, at the discretion of the intellectual property rightholder, licensing essential intellectual property without compensation.” Something has gone slightly rotten in the Commission [1, 2].

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