Ch. Tronche’s blog

Far from it. But the suspense goes on…

RIM Dodges Shutdown Bullet

Source: The Register.

Once again we have to question if patents (essentially software ones) are part of the solution or part of the problem.

In short, Microsoft wants to enter the smart phone market. Not only to enter it, but to storm it. To become the Microsoft of the smart phone, the undisputable mammoth.

However, the task is such than even Microsoft can’t do it alone. It needs other companies to build everything that’s necessary and is not an operating system or an application. It wants an ecology of applications for smart phones and PDAs, with Microsoft operating system at the center of the stage, very much like every third-party application for desktop Windows adds value to Microsoft today (and may be lack of appropriate software for Windows server makes avenue for other operating systems in the server world, but that’s another story).
The trouble is that companies (especially technologically saavy ones) are rather cold about it nowadays: they remember RIM vs NTP, RIM in Germany, battles around Qualcomm’s patents and more, and more.

So they don’t even try, and those having patents are the winners: they’ve stopped innovation from their competitors, not because their patents hold, because of superior technology or better product (they seldom build products), but by fear of litigation.

Thus, this isn’t good news for Microsoft. But there’s a solution: protect the small companies from IP litigation with the mighty shield of Microsoft money. This is what Microsoft is proposing.

Two thoughts about it:

1. Funny time when small companies must be protected against the devastating effects of software patents by the software titan, Microsoft itself. Funny we need this so the locomotive of innovation can resume its course. Weren’t patents supposed to make innovation blossom ? Weren’t patents (not Microsoft) supposed to protect these innovative companies ?
2. Now, if you’re CEO of such a company, and the company’s good, you know what’s your future: you’ll be bought by Microsoft. For quite cheap. If your product really thrills and Microsoft really needs it, Bill will just takes the shield off for you. He can do it, after all it’s his shield. And you, poor lamb, what will you do ? Fight the patents coyotes or sell yourself to Microsoft to go back to its protective umbrella ? But know that it won’t pay too much for that. It won’t have to. Offering an IP umbrella for free may be a very good investment for Redmond champion.

There was another way to unleash innovation by the way: just drop software patents in the law.

Software patents certainly incur important costs:

• to get them (cost quite marginal here, if you look at the other costs)
• to defend them in court
• you must get an insurance to ensure your company won’t be disrupted by a patent. Actually, this cost is so high in the US (where software patents are routinely granted), that nobody accepts to insure that risk any more, putting the whole economy (producers of software, but also users of software, that is, almost anyone) at risk in a kind of “software patent risk bubble”.
• they make the software much more costly (see here why).

They’re other cons also:

• patents are supposed to be a tool to boost innovation. However, the “free / open source” software (which developed outside the patent system) is undisputably the most innovative and dynamic segment of the software industry. Certainly, lack of patents there doesn’t translate into a lack of creativity. Any study in the patent domain that doesn’t take this into account cannot pretend to be serious.
• Patents are supposed to protect an invention during the “development” phase, that is when going from prototype to mass-production. However, this time is essentially zero-time, zero-cost in the software world: the means to mass-copy the software and distribute it (via internet) not only pre-exist the software, but also have a cost of essentially zero. Contrast this to, say, a drug, where the way from the lab to the mass production can be a research project in itself.

The software patents thus, create no incentive for innovation, is almost useless, and really stifle it by increasing the cost of software, the breath and blood of the 21^st century information economy.

Why should we tolerate it then ? Don’t we want innovation and growth ?

We should remember today why the patents, what are the fundamental ideas behind them (as opposed to the way they’re used, that is, the how-tos of patents).

What is a patent ?

A patent is a law-granted monopoly.

Why patents ?

• Patents are an incentive to create, and as such, a tool for policy makers
• By granting patent holders a temporary monopoly, they can get better-than-competitive-market profitability, and thus get an incentive in innovating more. This idea’s the basis for economical analysis of patent policies.
• Patents protect small innovators from being stolen by big business.
• Patents buy small innovators time to develop their inventions (very much like “moral rights” in the french author rights system)
• Patents help the diffusion of the knowledge
• The idea is that, without patents, the inventor may be tempted to keep its invention secret to protect it, thus making the invention lost for the human kind (potentially)

How do you get a patent ?

You fill some papers at the patent office, describing the invention in such a way that someone “skilled in the art” can reproduce it, claiming what’s supposed to be new, what you want a monopoly for, and other informations.

And you pay (important thing).

The office then “examines” the patent. Here, the examination means different things in different countries. In any contry, the patent’s gonna be read by someone, who tries to assert if it’s “reasonnable”. For example, if you try to get a patent for a perpetual motion machine, chances are that your patent will get rejected. Some formal checkings are made, for example I believe that, in the US, patents can only be granted to individuals, not organizations. In some countries, a prior art search is made (the office tries to assert the novelty of your patent). In other countries, there’s no such search, and the burden of the prior art search rests on you, the patent applicant (very much like in the trade mark system).

At some point, your patent gets registered.

What then ?

An important thing is that, whatever the patent office says, any interested party can go to court after your patent registration and claims your patent is invalid because for example, lack or novelty, or infriging a previous patent.

This raises the interesting question of how much money’s a brand new patent worth (close to zero, if you followed this last paragraph).