[Patents] Burce Perens: Software Patents vs. Free Software

[sf@fermigier.com (Stefane Fermigier)]

http://perens.com/Articles/Patents.html

   [...]

   So, who profits from all of this if the large companies don't? Not the
   small and individual inventors, they can't afford to sue to collect on
   their own patents. The system does keep a lot of patent lawyers in
   business, costing companies Billions every year. It may also keep some
   research scientists in business, since companies sponsor research
   departments so that they can have a steady flow of inventions upon
   which to file patents.

   Of course, getting companies to sponsor research is a good thing, and
   you might even think it justifies the patent system. However, wouldn't
   it be better if the research was targeted to benefit the company and
   its customers rather than to provide ammunition for an eternal
   stalemate of a patent war? And wouldn't it be better if the inventions
   of publicly-funded research organizations like universities were in
   the public domain, since the public has paid for them? Instead, they
   are tied up with patents and sold. Some universities claim that they
   need to be able to sell that patent monopoly, or they won't be able to
   entice anyone to develop their ideas commercially. Although this is a
   dubious claim, a U.S. law actually mandates patenting as part of the
   "technology transfer" of publicly-funded research.

   A trend over the past decade has been a new kind of patent parasite
   company that exists only to sue other companies. The parasite buys up
   patents and then files infringement lawsuits against other companies
   with deep pockets and a lot to lose. The parasite offers licensing
   terms of a few tens or hundreds of thousands of dollars, versus a cost
   of Millions for the victim to successfully defend themselves in a
   lawsuit. The victim generally caves in and pays the license fee, even
   though they could eventually have proven the patent to be invalid in
   court. So, this is another tremendous drain of company funds caused by
   the patent system. Parasites don't enter cross-licensing agreements,
   so they represent one of the worst offensive uses of patents.

   The cross-licensing defense works well if you have a lot of patents to
   use as ammunition, as a large company might, but the Free Software
   community has only a handful of patents held by a few individual
   developers, and thus ends up being an innocent bystander injured by a
   war of giants. Since it costs tens or hundreds of thousands of dollars
   in legal fees to successfully file an enforcible patent, we don't
   expect to get many more of them. So, scratch the cross-licensing
   defense for now.

         [...]

   Arguments for killing software and business patents abound:

   Of course there's the argument that software and business patents
   don't help advance science and the useful arts, and thus are
   constitutionally unjustified.

   Another argument is that the software patents are all on applications
   of a versatile hardware device called a "computer", and that the
   computer, as a hardware device, is the only part that should have been
   patented.

   Yet another argument is that the 20-year term of software patents is
   actually much longer than the useful lifetime of the invention. This
   circumvents the constitutional requirement that patents have a limited
   term, because the invention is so obsolete as to be without any
   remaining value at all by the time it reaches the public domain. It's
   easy to see this, since a "generation" of computer technology is only
   a few years long. 20 years is infinity compared to the speed of
   computer technology development or the lifetime of a computer product.

   An argument against business method patents is that the monopoly they
   can create on a particular form of business could be in violation of
   anti-trust laws.

   And of course an argument against the acceptance of software and
   business-method patents in other countries than the U.S. is that this
   would constitute a U.S.A. Tax. Those countries would just take all of
   their patent royalties and send them to the U.S.A., where the software
   and business-method patent owners are today.

   But the best argument for this essay is that software patents block
   Free Software development. Today, they are a nuisance, tomorrow they
   could be much more. There are companies that see Free Software,
   especially GNU/Linux, as an interloper to be shut down, a competitor
   to be eliminated. Some of these companies have increased the rate at
   which they file new patents. It's not impossible that these companies
   and their business partners could start going after Free Software
   developers, en masse, with patent infringement lawsuits. Since
   essentially none of us can afford to defend ourselves, most developers
   would be forced to cave in, withdraw their software, and stop
   participating in Free Software development. We must be ready with a
   defense, before that day comes.

   Ironically, some of the biggest patent holders are the Free Software
   Community's own partners, companies like IBM and HP that have
   aggressively incorporated GNU/Linux into their business plans and
   expect significant revenue from it before long. IBM is said to hold
   10% of software patents, and HP is one of the largest patent holders
   in general. It's important for us to start a dialogue with these and
   other partners. That's why I am calling a summit meeting on Free
   Software and The Law. Patents will be a full-day topic, with DMCA,
   UCITA, license law, and other legal issues covered on a subsequent
   day. Unfortunately, this isn't a public meeting. When asked about
   that, Richard Stallman said inviting a public audience to a
   negotiation isn't the best way to get an agreement. However, I've
   invited a broad slate of Free Software representatives, covering all
   of our various viewpoints, and will invite a few more.

   [...]

        S.

-- 
Stéfane Fermigier, Tel: +33 (0)6 63 04 12 77 (mobile).
http://nuxeo.com/ & http://portalux.com/ & http://aful.org/
"Amazon: we patent the dot in .com"