Original: Georg C.F. Greve, FSFE Founder

Summary: The Free Software Foundation Europe (FSFE) calls the spade "a spade"; Nokia's solution to the extortion problem cannot be generalised, so patent reform is urgently needed

BACK in March we wrote about the former CEO of Sun Microsystems revealing that Bill Gates and Steve Jobs had extorted him. Yes, Apple is doing this too [1, 2, 3, 4, 5], but it does this more discreetly.

The head of the FSFE (not Greve) has just issued a relatively strongly-worded statement in his blog. It says:

Software patents and blackmail

From a very practical perspective, it is next to impossible to determine whether a given piece of software violates patents. A typical program consists of dozens if not hundreds of ideas. Any of them could be patented. In practice, making sure you’re not infringing a patent simply takes too long, and is too expensive. So nobody does it.

And I do mean nobody. Even the largest corporations can’t stay clear of each others’ software patents - over the past few months alone, we have seen lawsuits between Apple and HTC , Red Hat vs. IP Innovation LLC (now that’s a name for a patent troll. Well, they went home with a ringing defeat. Congratulations to Michael Cunningham, Rob Tiller and the rest of the Red Hat legal team!), and the Apple vs Nokia sue-fest.

But corporations sue other corporations only as a last resort. Jonathan Schwartz, Sun’s former CEO, illustrated quite pointedly how large corporations normally deal with this problem: They simply threaten each other with their different patents until both agree that it’s better to stay quiet.

Bill Gates was quite right when he said in 1991:

“If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete stand-still today. [...] A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.”

[Internal Microsoft Memo (1991), quoted in Fred Warshofsky, The Patent Wars (1994)]

For a company like IBM, Apple or Microsoft, patent lawsuits are a huge problem. For any organisation smaller than that, they’re an existential threat.

All this turns spreading fear, uncertainty and doubt about software patents into a marketing strategy. As Jobs has done, you simply have to say “we know your stuff is infringing patents, but we’re not telling you which ones”. This is a callous strategy to make your target’s customers and users think they are under some sort of legal threat.

There’s a word for that. It’s called blackmail.

Indeed.

Don't Get M.A.D.

Nokia, which has a vast patent portfolio and is based in Europe, said that it intends to fight Microsoft in case Microsoft tries to 'tax' MeeGo distribution using extortion tactics [1, 2, 3, 4, 5, 6, 7] (like those tactics which were apparently used against HTC). Here is what Pogson wrote about it:

Interesting news. While M$ runs amok threatening to sue the world over rumoured patent violations in GNU/Linux, Nokia and Intel are promising to protect customers from such suits.

Needless to say, few companies enjoy the portfolio breath of Nokia and Intel. This is hardly a solution; it's good enough for Nokia and Intel, but mostly useless to the rest.

What You Can Do About It

As JM Cerqueira Esteves pointed out yesterday, "PATQUAL survey on the quality of the European patent system has been extended to 15th May 2010" (direct quote below).

European Union. The deadline of the PATQUAL survey on the quality of the European patent system has been extended to 15th May 2010

Tell Europe's administrative figures to stop accepting software patents from the back door. There ought to be explicit rules to end this by denying access through the loopholes. ⬆

"[The EPO] can’t distinguish between hardware and software so the patents get issued anyway", —Marshall Phelps, IAM: Microsoft to have 50,000 patents within two years, Phelps reveals