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Electronic Frontier Foundation, Google, Red Hat et al. Should Work to Eliminate Software Patents, Not Just Patent Trolls

Posted in EFF, Google, Patents, Red Hat at 5:50 am by Dr. Roy Schestowitz

Daniel Nazer

Summary: A look at the strategy of prominent GNU/Linux backers (plus the EFF) and criticism for the shortcomings

Oscure blogger Dietrich Schmitz, who is only starting to learn what Linux advocacy is, realises that patents are a major issue for Linux and GNU. Red Hat et al. recently filed a complaint over it and Pamela Jones has some coverage of this. She writes:

Joe Mullin at ars technica has the welcome news that the FTC is thinking about using subpoena powers to investigate patent trolls, such as Intellectual Venture. He mentions that Google, Red Hat, Blackberry and Earthlink just sent some comments [PDF] to the FTC and the Department of Justice asking for an investigation into what they politely call patent assertion entities, or PAEs. So have the Computer and Communications Industry Association [Comments, PDF] and the National Restaurant Association [Comments, PDF] also asked for such scrutiny.

But the most important part of the Google et al. request, to me, hasn’t yet been highlighted in the media reports I’ve seen. What they are asking for is not just an investigation into trolls, but into active companies outsourcing their patent enforcement *to* PAEs. And what they are asking for is whether such activities in some instances can rise to the level of antitrust violations.

That is something I’ve wondered about for a while — why didn’t regulatory bodies see what is happening to Android, for example, with all the old guard working apparently together to try to crush it? One thing that Microsoft and Nokia have done, for example, is outsource patent enforcement to MOSAID and other patent enforcement-style non-practicing entities. (If you recall, Google filed a compliant specifically about that with the EU Commission last summer.) The new comments call the new outsourcing to trolls patent privateering, which they say is designed for assymetric patent warfare — meaning the defendant’s business is at stake, but the outsourcing company’s business isn’t, and the troll has nothing to lose, because it has no business.

Daniel Nazer, writing about “patents for open innovation” (he is a Staff Attorney on the Electronic Frontier Foundation’s intellectual property team, focusing on patent reform) adds his support to Google, which in turn does not go far enough. To quote a new article:

Finally, Google has some other suggestions for improving patent quality. It thinks that prior art needs to be more easily searchable, which it thinks could make things easier for examiners and reduce the number of invalid patent claims from being issued. It also recommends better standardization of terminology, which it thinks will both make it easier to search for prior art and help reduce the amount of litigation by clarifying an invention’s scope. But while it stopped short of supporting the EFF’s position that software patents ought to include working code, it thinks it’s worth discussing a requirement to include pseudo-code, although it warns that the idea could be unwieldy without a standardized format.

Last month, Google made a pledge to refrain from suing developers, distributors, and users of open source software that infringe on its software patents unless it’s attacked first, decrying the roughly $25 billion that patent trolls are gleaning annually with software patent litigation. It’s clear that the Patent and Trademark Office really does want to be seen as a promoter of innovation — now that the deadline has passed for public comment submission, we’ll have to see which, if any, of the many suggestions it will implement.

Google should work to abolish software patents, not large trolls. We said this years ago. What Google is doing about patents could be vastly improved. We said the same about Red Hat, many times in fact. They all do what’s right for their shareholders, but not for society; they don’t deem it their responsibility.

Over the years I have urged Google (also via E-mail to its manager) to start fighting against software patents rather than reform them. Posts on the subject include the following dozen:

Gérald Sédrati-Dinet, the leading opponent of the Unitary Patent (threat of software patents in Europe), said this morning: “I’m very critical with EFF strategy wrt #swpats [software patents]: they should require their abolition, not bad half-solutions” [anything but abolition].

He is right. The EFF — like Google — has been pursuing the wrong solutions. We gave some examples and constructive criticism of their approach.

Never count on corporations to fix broken law for public interests. Remember CISPA? The law that has just been passed to allow the government to easily acquire private citizens’ data? Well, guess which side Google was on…

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