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Patent Trolls and ‘Royalties’: Distracting From the Real Issue Which is Software Patents

Posted in Patents at 9:12 am by Dr. Roy Schestowitz

A lawyers’ (or politicians’) mindset


Summary: A lawyers-led debate neglects to target the core issue, which is patenting of software, instead resorting to attack on the symptom, which most often exploits software patents

Software patents have always been the #1 subject in this Web site. These patents — and by extension the patent system — are the #1 barrier to GNU/Linux domination in the post-Vista, post-Nokia/Symbian, post-x86 era.

Rather than discuss what’s “Fair” and “Reasonable” (to charge innovators) we should start tackling the source of the problem we all face because lawyers and their clients took over. Weak reformists do not advocate the end of software patents, they advance coexistence with them. FRAND is a common line for software patents apologists. As one site put it, “standard-essential patent owner is obligated to enter into binding baseball-style (or “final offer”) arbitration with any willing licensee to determine the royalty rate.”

“Rather than discuss what’s “Fair” and “Reasonable” (to charge innovators) we should start tackling the source of the problem we all face because lawyers and their clients took over.”Why discuss rates for something that might not be valid in the first place, such as the case in Europe? In the USPTO, where Apple is allowed just about any crazy monopoly it asks for (the institutional bias for large corporations), software patents might be acceptable and even enforceable internationally through the ITC (in the latest from the Apple versus Samsung case it likes to block Korean, i.e. non-US, companies). Watch this amazing bit of news, which is part of a bigger picture of Apple versus Android FRAND battles [1, 2]. Here is more on that from patent lawyers’ (hence biased) blogs.

Mark Lemley, an academic lawyer himself, proposes adjustments for FRAND rather than rejection. From his new paper:

Standard Setting Organizations (SSOs) typically require their members to license any standard-essential patent on Fair, Reasonable, and Non-Discriminatory (FRAND) terms. Unfortunately, numerous high-stakes disputes have recently broken out over just what these “FRAND commitments” mean and how and where to enforce them.

One lawyers’ site says that FRAND disputes start to expand outside the US, meaning that patents on software become enforceable in bulk where those patents, individually, are neither valid nor legal.

Aiming at trolls is another pattern of distraction, for instance with Obama nominating/appointing the problematic people while claiming to address the issue of trolls. Where is the protest? Where it the uproar? SOPA need not have a monopoly on outrage.

Here is some food for thought for Obama. As Pamela Jones notes: “Don’t miss this incredible article, everyone. It’s eye-opening. Mr. Ewing advises WIPO and is the attorney who first coined the phrase “patent privateering”, and this letter is his comment filed, along with many others which he makes available here — scroll down — in connection with a workshop that the FTC held on PAEs, or trolls, in December. The link doesn’t work any more, by the way, the one he includes in his letter regarding the workshop, but the cache is still available if you go to that page and then search for atr/public/workshops/pae in the search box.”

The EFF, not to its credit, left aside its old pitch of “against software patents” and now it is back too focusing on trolls and going after particular patents or players one by one (like the ineffective Patent Busting project). Here is a new example.

“Targeting trolls is not enough. All these reformists are going after the symptom rather than the disease.”Pamela Jones notes that the US government is studying trolls with special powers on its side, but it is not enough. Jones points out the article titled “Patent trolls launched majority of U.S. patent cases in 2012″ and then correctly points out: “That means that if you solve the patent troll problem, you still have nearly half of the problem unsolved.”

Nazer from the EFF is among those who focus not on the real solution to the mess and with phrases like “Crappy Software Patents” in the headline he helps imply that some software patents are “good”.

“Considering that algorithms are mathematics,” writes Jones, “and mathematics is non-patentable subject matter, I can’t see how this proposal will solve the fundamental problem.”

Rackspace, on the other hand, has gotten Jones’ support. With posts like these, the company shows that it wants the system itself fixed. In its blog it says: “When it comes to fighting this particular troll, we believe an IPR is our best option to have this patent abolished at its source – eliminate the root, destroy the weed.”

Watch the response from the troll’s site (it says “monetized to date” at the top). They call patent infringement theft. Here is a Patent Progress guest post from Rackspace, titled “STOP ABUSIVE PATENT LITIGATION, FOR THE SAKE OF OUR ECONOMY”

The site Patent Progress makes some suggestions for the ITC study and cheers for the FTC to shase down trolls as if it’s the only problem these days:


A century ago there was a lively debate in Congress over the enforcement of the antitrust laws. Much of the 1912 presidential campaign had focused on the lack of effective antitrust enforcement by the Justice Department and the failure of the Sherman Act to stop growing anticompetitive conduct in the marketplace. In 1913, Congress focused on the urgent need for reform of the antitrust laws and stronger enforcement.

Targeting trolls is not enough. All these reformists are going after the symptom rather than the disease. That’s not to say that patent trolls are not an issue; they are. But if a huge number of people petition President Obama on the subject of software patents and receive a response about trolls, then someone is trolling and distracting them; the trolls will go away when large corporations, which are behind the government, decide that they must go away. Pursuing the end of trolls is leaving all the power in the hands of corporate cartels that use patents to harm everyone, including Android (a notable victim).

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