TechDirt's Mike Masnick

Summary: Famous monopoly abuser (IBM) chooses to publicly promote FOSS-hostile legal frameworks, only to find its arguments shredded to pieces by TechDirt

IBM has been somewhat of a traitor whenever it advanced software patents around the world, e.g. Europe and New Zealand. IBM's arguments are full of holes. For instance, IBM tried to insinuate that patents help Open Source. Backlash to this lobbying effort was great at the time.

Here is Mosnick with an excellent, success rebuttal that covers many of the key points. It's nonsense-burying rebuttal that goes along the lines of, you have more patents, which means... well, that you have more patent monopolies, not innovation. Or, something is claimed to be successful because of patents, not despite of patents -- how often do we see that strategic fallacy in the copyright lobby too?

Wired kindly reprinted the rebuttal which says:

Rebuttal: ‘The Patent System Works Fine Because… Hey Look Over There!’

IBM’s Chief Patent Counsel, Manny Schecter, has one of the most ridiculous defenses of the patent system you’ll ever see over at Wired, entitled With All Due Respect: The Patent System’s Not Broken. Having debated the patent system for years, I’ve noticed a pattern among patent system defenders who are big time patent lawyers. Their argument tends to amount to: see this wonderful thing? It exists because we have patents. Period. The fact that whatever it is they’re pointing to probably has nothing to do with patents will never be acknowledged.

[...]

The reason for this is not difficult to assess if you’re not a patent lawyer. It’s that companies don’t sell “patents,” they sell products. And you can sell products whether or not they’re patented. If you build something people want, you can figure out a way to sell it — even if someone copies you. In fact, what plenty of other research has shown is that (again, contrary to what many lawyers believe) copying market leaders is often a hell of a lot more difficult than people believe. And, of course, even if you have a direct copy, it doesn’t mean you can really compete. The first mover advantage is important, but so is knowing how to market and sell products, and copiers often don’t do a good job on that front. So, yes, there are plenty of reasons companies would spend a lot of money without patents.

[...]

Where to start? First off, which economists? Second, having your value attributed to your “intellectual property” (loosely defined) is not the same thing as saying that it’s because of intellectual property laws. This is a common and ridiculous mistake that many make — assuming that because the things currently covered by IP laws are important, the laws themselves must be important. Ideas, content, innovation etc. all exist absent IP laws. This is something that patent lawyers seem to conveniently forget or ignore. Next, the $5 trillion number and the 40 million jobs claim — well, that’s equally bogus, as we’ve discussed before. It’s based on the ridiculous and obviously faulty belief that these jobs and “contribution” to the economy are due to “IP laws” and not other economic activity such as people actually selling stuff. And those jobs? Yeah, anyone who claims that has lost all credibility, because, remember, it’s actually mostly about trademark, and that means that 2.5 million of those jobs are actually people working at grocery stores. Sorry, dude, you don’t get to claim the checkout bagger as a reason why we need stronger patent laws.

[...]

In the end, none of the arguments he makes even come close to making sense. At best, he argues some sort of bizarre correlation to make his point, but most of the time he’s just pointing elsewhere and pretending it has something to do with patents. We could just as easily argue that patents have caused population growth in the US. I mean, look, the population has grown… and we have patents! And it would be just as meaningless as every single argument he makes.

Over at Groklaw, a pro-IBM site, Jones wrote: "The software industry was built when there were no software patents, as Bill Gates himself has pointed out. The patent system is broken, if you are not already one of the three or so "winners" already in place. That's who it works for. But innovation doesn't come from them."

Manny Schechter speaks for a monopoly abuser from the old days, he does not speak for scientists. Ansel Halliburton, a patent lawyer, showed similar pro-patents leanings when he said Apple is getting money from HTC (FUD!). "Plus," writes Jones, "FOSSPatents is drooling loathesomely that Nokia will win royalties from HTC as well next. How's that for a free market? "Let's all get together and kill of Android," eh?"

We'll discuss this in the next post. It's all just FUD from patent lawyers, Microsoft lobbyists, and some inane boosters. And this FUD has travelled way too far. ⬆