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 These two are quite outdated and 'modernising' them for the age of digital abundance is imperative; making software patentable like hardware is worse than foolish and trying to restrict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

A Week After a Worldwide Windows Outage Microsoft is 'Bricking' Windows All On Its Own, Cannot Blame Others Anymore
A look back at a week of lousy press coverage, Microsoft deceit, and lessons to be learned
 
Links 26/07/2024: Tesco Cutbacks and Fake Patent Courts
Links for the day
Links 26/07/2024: Grimy Residue of the 'AI' Bubble and Tensions Around Alaska
Links for the day
Gemini Links 26/07/2024: More Computers and Tilde Hosting
Links for the day
Links 26/07/2024: "AI" Hype Debunked and Elon Musk's "X" Already Spreads Political Disinformation
Links for the day
"Why you boss is insatiably horny for firing you and replacing you with software."
Ask McDonalds how this "AI" nonsense with IBM worked out for them
No Olympics
We really need to focus on real news
Nobody Holds the GNOME Foundation Accountable (Not Even IRS), It's Governed by Lawyers, Not Geeks, and Headed by a Shaman Crank
GNOME is a deeply oppressive institutions that eats its own
[Meme] The 'Modern' Web and 'Linux' Foundation Reinforcing Monopolies and Cementing centralisation
They don't care about the users and issuing a few bytes with random characters costs them next to nothing. It gives them control over billions of human beings.
'Boiling the Frog' or How Online Certificate Status Protocol (OCSP) is Being Abandoned at Short Notice by Let's Encrypt
This isn't a lack of foresight but planned obsolescence
When the LLM Bubble Implodes Completely Microsoft Will be 'Finished'
Excuses like, "it's not ready yet" or "we'll fix it" won't pass muster
"An escalator can never break: it can only become stairs"
The lesson of this story is, if you do evil things, bad things will come your way. So don't do evil things.
When Wikileaks Was Still Primarily a Wiki
less than 14 years ago the international media based its war journalism on what Wikileaks had published
The Free Software Foundation Speaks Out Against Microsoft
the problem is bigger than Microsoft and in the long run - seeing Microsoft's demise - we'll need to emphasise Software Freedom
IRC Proceedings: Thursday, July 25, 2024
IRC logs for Thursday, July 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 26/07/2024: E-mail on OpenBSD and Emacs Fun
Links for the day
Links 25/07/2024: Talks of Increased Pension Age and Biden Explains Dropping Out
Links for the day
Links 25/07/2024: Paul Watson, Kernel Bug, and Taskwarrior
Links for the day
[Meme] Microsoft's "Dinobabies" Not Amused
a slur that comes from Microsoft's friends at IBM
Flashback: Microsoft Enslaves Black People (Modern Slavery) for Profit, or Even for Losses (Still Sinking in Debt Due to LLMs' Failure)
"Paid Kenyan Workers Less Than $2 Per Hour"
From Lion to Lamb: Microsoft Fell From 100% to 13% in Somalia (Lowest Since 2017)
If even one media outlet told you in 2010 that Microsoft would fall from 100% (of Web requests) to about 1 in 8 Web requests, you'd probably struggle to believe it
Microsoft Windows Became Rare in Antarctica
Antarctica's Web stats still near 0% for Windows
Links 25/07/2024: YouTube's Financial Problem (Even After Mass Layoffs), Journalists Bemoan Bogus YouTube Takedown Demands
Links for the day
Gemini Now 70 Capsules Short of 4,000 and Let's Encrypt Sinks Below 100 (Capsules) as Self-Signed Leaps to 91%
The "gopher with encryption" protocol is getting more widely used and more independent from GAFAM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 24, 2024
IRC logs for Wednesday, July 24, 2024
Techrights Statement on YouTube
YouTube is a dying platform
[Video] Julian Assange on the Right to Know
Publishing facts is spun as "espionage" by the US government and "treason" by the Russian government, to give two notable examples
Links 25/07/2024: Tesla's 45% Profit Drop, Humble Games Employees All Laid Off
Links for the day
Gemini Links 25/07/2024: Losing Grip and collapseOS
Links for the day
LWN (Earlier This Week) is GAFAM Openwashing Amplified
Such propaganda and openwashing make one wonder...
Open Source Initiative (OSI) Blog: Microsoft Operatives Promoting Proprietary Software for Microsoft
This is corruption
Libre-SOC Insiders Explain How Libre-SOC and Funding for Libre-SOC (From NLNet) Got 'Hijacked' or Seized
One worked alongside my colleagues and I in 2011
Why We're Revealing the Ugly Story of What Happened at Libre-SOC
Aside from the fact that some details are public already
Removing the Lid Off of 'Cancel Culture' (in Tech) and Shutting It Down by Illuminating the Tactics and Key Perpetrators
Corporate militants disguised as "good manners"
FSF, Which Pioneered GNU/Linux Development, Needs 32 More New Members in 2.5 Days
To meet the goal of a roughly month-long campaign
Lupa Statistics, Based on Crawling Geminispace, Will Soon Exceed Scope of 4,000 Capsules
Capsules or unique capsules or online capsules are in the thousands and growing
Links 24/07/2024: Many New Attacks on Journalists, "Private Companies Own The Law"
Links for the day
Gemini Links 24/07/2024: Face à Gaïa, Emacs Timers for Weekly Event, Chromebook Survives Water Torture
Links for the day
Why Virtually All the Wikileaks Copycats, Forks, and Rivals Basically Perished
Cryptome is like the "grandpa" of them all
A Total Lack of Transparency: Open and Free Technology Community (OFTC) Fails to Explain Why Over 60% of Users Are Gone (Since a Week Ago)
IRC giants have fallen
In the United Kingdom Google Search Rises to All-Time High, Microsoft Fell Nearly 1.5% Since the LLM Hype Began
Microsoft is going to need actual products or it will gradually vanish from the market
Trying to Put Out the Fire at Microsoft
Microsoft is drowning in debt while laying off loads of staff, hoping it can turn things around
GNU/Linux Growing at Vista 11's Expense
it's tempting to deduce many people who got PCs with Vista 11 preinstalled are deleting it, only to replace it with GNU/Linux
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 23, 2024
IRC logs for Tuesday, July 23, 2024