Bonum Certa Men Certa

Losing Sight of the Real Problem With the Patent System

Man with glasses



Summary: Criticism of a strategy for reforming the patent system -- a strategy which gained popularity despite the fact that it is a red herring with no solution in sight

Armed with some new information, Mike Masnick insists that "Over 90% Of The Most Innovative Products From The Past Few Decades Were NOT Patented". Copyright is not a prerequisite for creativity and patents are not essential for innovation; these legal instruments are empirically shown, repeatedly, for having the very opposite effect. So the problem is patents and copyrights, not those who use or misuse them. These two are quite outdated and 'modernising' them for the age of digital abundance is imperative; making software patentable like hardware is worse than foolish and trying to restrict copies of 1s and 0s is also an impossible task.



Brad Feld, a startups-loving VC, says "It's Time To Protect Startup Communities From Patent Trolls" (which again places focus on trolls rather than software parents, as Feld used ti). To quote his opening paragraphs:

If you’re a mobile gaming startup, you’ve probably heard of, or even been sued by, a company called Lodsys. Where this narrative gets interesting is when you understand that Lodsys is suing small, effective companies for “unlawfully” using patents that that it has no intention of developing upon. This behavior is what the tech community calls patent trolling. And there are AT LEAST hundreds of so-called “patent trolls” out there — increasingly targeting startups, creating a real drag on innovation and job creation. 55 percent of the companies targeted have $10 million or less in annual revenue.

I spend my days investing in new tech companies around the United States, hoping to help them build the next great idea that will make our lives better. Startups already face many unique challenges to growth and so I’m always disheartened to see legislation that fails to protect, or even hurts, companies that are creating jobs and inventing breakthrough technologies. One recent example is the America Invents Act (or AIA) — the biggest attempt at patent reform in over 50 years. Despite the attempt at change, the system is still struggling under the weight of overly broad patents that are often bought up by non-practicing entities (or patent trolls).


But that's not the key point; trolls are not always worse than large entities which use software parents to impede startups. Masnick's site says that "When Startups Need More Lawyers Than Employees, The Patent System Isn't Working" (irrespective of patent trolls). This too, however, uses the recurring theme of trolls rather than software patents:

As part of our sponsorship program with the Application Developers Alliance, we're highlighting some of the content on DevsBuild.It, their new resource website, that we think will be most interesting to Techdirt readers.

We've talked a lot about the tax on innovation that patent trolls create, which is well-known inside startup circles but often misunderstood by the broader public, thanks to the pro-innovation rhetoric of high-profile trolls like Intellectual Ventures. The conversation is getting more attention lately, especially with the recent news of Senator Schumer's patent reform bill which specifically aims to fight the patent troll problem, and this interview with an anonymous developer from a tech startup offers some perspective from someone who is directly affected by the issue.


Ashby Jones from the Murdoch-owned press misses the boat by using a false narrative in the article "Samsung-Apple Patent Fight: Is It Worth It? "

There are issues with this article. It starts with: "Smartphone makers who went on the offensive in the industry's patent wars are learning a tough lesson: The courts aren't buying it."

Not quite accurate. It was Apple that sued Samsung, it's not a two-way battle. When one side seeks deterrence/defence through reactive litigation, it's not quite as the article puts it. Here is a post based on this report:

WSJ: The patent wars have been a major bust for all smartphone vendors



While just about everyone is sick and tired of the constant barrage of patent lawsuits among smartphone vendors, it seems that tech companies themselves keep plugging precious resources into suing one another despite having fairly little to show for it. Analysis by The Wall Street Journal has found that “courts have proven as likely to deliver plaintiffs a rebuke as a win, and the slow grinding of the justice system has sapped the impact of the occasional big victories” in patent lawsuits.


There is a pattern in reporting which is troubling; either the reporters single out the mobile market as the issue or they simply name the trolls, never challenging the simple idea that patents themselves (or their scope) may be the culprit.

Apple is suing Android/Linux because Apple is desperate, not because its patents have merit. Already we see some eulogies for Apple, such as this one about "Peak Apple". It says:

Foxconn is reportedly planning for an Apple-free future after a massive slump in orders from Cupertino.

Apple's favourite production company is moving away from simply building other people's designs and trying to break into a new market with the introduction of a range of flatscreen televisions.


Recall that Foxconn sold Android down the river to Microsoft [1, 2]. This is neither an issue of patent trolls nor an issue of patent applications backlog. Taking a shot at trolls would do nothing to address the issue, not in its entirety anyway.

Recent Techrights' Posts

Banning Things Versus Teaching People the Reason/s to Shun/Boycott Those Things
Prohibition has its limits
European Patent Office (EPO) Crisis: Huge EPO Strikes, Profound Corruption, and Cocaine Use by Managers Tolerated
These strikes won't be ending any time soon
 
SLAPP Censorship - Part 100 Out of 200: Interlude and Outline of the First Half, 3+ Months That Got Us Death Threats Connected to Brett Wilson LLP (and Cyber Attacks That Are Difficult to Attribute)
This week we plan to have a good time
Links 07/06/2026: NASA's Mars Maven Declared Dead, Telegram Founder Pavel Durov Bemoans Russia's Crackdown
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 06, 2026
IRC logs for Saturday, June 06, 2026
Gemini Links 07/06/2026: How to Train Your Dragon (2010) and "Six Days of Play"
Links for the day
Links 06/06/2026: 'Epstein Problem' in Board of Directors of Microsoft, Surveillance Giant Google Under Legal Threats for Online Misuses
Links for the day
Software Freedom Takes a Lot More Than Coding
some of the roles in the Free software community that don't receive (m)any grateful words
Ubuntu is Losing to Other GNU/Linux Distros
"Linux Mint"
Old Articles Explaining That Patents - Especially Software Patents - Are Bad for Innovation
We've omitted more than 50% of the articles we had gathered as candidates for inclusion
Why GNU and FSF Will Choose AV1 Over AV2 (It's More Widely Supported)
for the foreseeable future they'll stick with AV1
Mass Layoffs (RAs) and PIPs (Excuses to Sack) at IBM: Insiders Tell No Relation to Actual Performance
If many thousands are impacted by this, then certainly it is newsworthy
Links 06/06/2026: LinkedIn Infested With Spies, Ethernet WiFi Router On Pi Pico 2W
Links for the day
25 Years With PalmOS
That my Palm PDA still works in 2026 (not in mint condition but close to that) says a lot about the "build quality" of gadgets 20+ years ago
Why We Dumped Online Shopping (Groceries)
subsidies kept the "online" stuff artificially cheap
Microsoft Fell to All-Time Low in Monaco Last Month
So says statCounter anyway
Lawsuits That Don't Work
Not as expected anyway
SLAPP Censorship - Part 99 Out of 200: Graveley and Garrett Seem to Have Crashed Brett Wilson LLP (Worse Than Taking Russian Oligarchs as SLAPP Clients)
a state of disarray
Microsoft Has Spent Months Preparing Lists of People to Cull in Massive Wave of Layoffs (Allegedly Start of July)
There is some consensus that we're weeks away from mega-layoffs at Microsoft
Gemini Links 06/06/2026: "Competing" With LLMs and "Automation of Any Kind"
Links for the day
Links 06/06/2026: 'Linux' Foundation Openwashing Slop on Microsoft's Payroll, Ukraine Wants Permanent Ceasefire With Russia
Links for the day
50% of the 'Gains' Made by "Quantum" Hype Already Evaporated
"It was all hype about quantum nonsense. Heading back to reality now. Expect sub-$220 after earnings release next month."
Heap of Trash Online, Not Just the Fault of LLM Slop But Enabled by Slop
Google News has just promoted a pair of prolific slopfarms
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 05, 2026
IRC logs for Friday, June 05, 2026
Links 05/06/2026: Lawyers in Trouble for Citing Cases That Don't Exist (Slop Too Bad to Justify Costs; Even It It Did Work, It Would Still be Far Too Expensive)
Links for the day
Gemini Links 05/06/2026: Bears in the Streets, WWII Revisionism, and Westworld
Links for the day
IBM is "Making an Exit". Only the Executives Will Get Rich.
failure disguised as success
Microsoft's LinkedIn Called "Dying Platform" by One Who Worked There
The co-founder of LinkedIn has just stepped down too
GAFAM (Google, Amazon, Facebook, Apple, Microsoft) Layoffs Are Due to Surging Debt, or About 120 Billion Dollars Borrowed in One Year Alone
It's well above 150 billion dollars if one adds Oracle
2026 is the Year of Blockchains, Says IBM's CEO a Decade Ago?
"falling upwards"
After One Jeffrey Epstein Associate 'Leaves' Microsoft's Board Another Jeffrey Epstein Associate Steps Down, Workers Concerned About the Mass Layoffs
How many more loans can Microsoft receive? Those loans are becoming increasingly risky.
IBM Exploits Overambitious, Hungry Young Men to Help the "Great Quantum Hype Campaign" (Pumping the Stock Based on Deliberate Misinformation or Outright Disinformation)
The boot-licking campaign is live...
What Will Likely Happen When the Slop Bubble Pops (and When It'll be Widely Accepted That It Popped)
all the "most successful" slop companies are so deep in debt
The Register MS is Part of the Problem, It's Publishing "AI" SPAM Because it's Paid by Chinese Military-Connected Firms
Given that The Register MS is run by a Microsofter (since last summer), destruction seems inevitable
Most Coders Used to be Women, Not Men (and Men Who Dropped Out of College Now Plunder Everything They Can)
"Ethics For Hackers"
IBM's CEO Does Not Use GNU/Linux, So Why Did He Suggest Buying Red Hat Only to Lay Off Its Workers, Market Slop Instead of Linux, and Sack UNIX Professionals?
Shortly after IBM had bought Red Hat and there were mass layoffs we pointed out that Red Hat's CEO was not using GNU/Linux
If You're Not Focusing on Software Freedom, All You'll Get is Slopware and Buzzwords
If you're not focusing on attaining Software Freedom (and remember "Linux" is just a brand), then you're losing sight of the goals that actually matter
Red Hat/IBM: Microsoft is Our Partner of the Year
Red Hat is a really bad gravy
Gemini Links 05/06/2026: Enshittification of Institutes for Project Management, Codebases Contaminated With Slop, Personal Stories
Links for the day
Communicating With Freedom - Part II - Quibble Breathing New Life Into LibreJS
Notice how work on one thing led to thousands of lines of code added to a mostly dormant (but nevertheless important) project
Slop Has no ROI, an Economy Built on False Assumptions of Slop is Doomed
we're all going to suffer from this Ponzi scheme
Links 05/06/2026: More GAFAM Layoffs, Google Faces Regulatory Crackdown in UK Over Plagiarism in "AI" Clothing
Links for the day
Rumour That Layoffs at Microsoft Will Kick Off on July 1st, 2026 (Impacting 10,000 or More Workers)
this is what the rumour mill or the word through the grapevine is
Mission:Libre, Which Teaches Young People Free Software Ideals, Needs Financial Backing
plea for assistance with Mission:Libre
The Slop Ponzi Scheme is a Problem and Threat to All of Us (Even Those Who Don't Invest in or Use Slop at All)
This problem is systemic, not contained
"Blind Justice" Examines the Solicitors Regulation Authority (SRA) Turning a Blind Eye to Abuse by British Solicitors
We have some jaw-dropping examples of how the SRA does not do actual regulation - to the point where its staff does not actual work and does not look into any evidence at all!
7 Days From Now the FSF's Founder Gives a Talk in Bern, the FSF Has Just Advertised This
Meanwhile the FSF (or GNU) processes and uploads many recent talks by RMS
European Patent Office (EPO) Series: Down But Not Out – Costa's Comeback
he managed to secure a top-level EU position in June 2024
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 04, 2026
IRC logs for Thursday, June 04, 2026