Ch. Tronche’s blog

First, I must tell that I’m a former FFII member (and a regular IPkat reader).

I understand that the somewhat dry style of the FFII release is uselessly offendant to IP lawyers around, and that this doesn’t add anything to the debate.

This said, I met many IP professionnals at FFII, so swpat involved people shouldn’t underestimate the depth of FFII analysis. It also means that not every IP lawyer is in favor of software patents, far from it.

I’m personally against software patent on the basis of economic arguments: software is fundamentally different from physical products in term of production (copy) and distribution time and cost: zero in the software world, most of the problem in the physical world. It thus makes no economical sense to grant a twenty years monopoly for software, much less an algorithm.

There’s however a thought I’d like to share about law firms (especially IP law firms), some light was shed onto by the derailing of the EC directive on the so-called computer implemented inventions, largely due to the FFII efforts.

Software patents essentially don’t exist in the EU law, and are under attack in the US. No one can predict where it will end. May be something close to the ill-fated directive on CII will be adopted eventually, may be software patent will finally be rejected in the US, hard to tell. To act in the best interest of their clients, law firms should make this clear, at the very least.

Unhappily, this is hardly the case, and I know of at least one IP counsel in France, not worse than any other, that took the adoption of the CII directive for granted (self delusion ?). Some of its startup clients, that I also know of, so advised, applied for patent on software terms. At least one of these startups were let down by its VC once the directive was rejected, on the basis the business plan was no longer sustainable with no way to protect the product. The point is that such episodes globally undermine the trust between startups and law firms, and this is never a sane situation.

If you’re a good IP lawyer, there’s ton of money to make in a world without software patents, so tell your client the truth: patents don’t make software defensible.

PS: I’m the happy owner of trade marks, and I’ve very good relations with my IP lawyers.

If you threat someone on IP ground, be right, or prepare for retaliation:

Groundless patent threat over wine tap leads to Smurfit payout

“The industry’s efforts to salvage its sales-based revenue model have compelled it to resist consumer demand for full, unfettered, DRM-free access to music; blocked consumer electronics makers and technology firms from offering new products with next generation capabilities; limited the growth of webcasting and other digital audio services; chilled free speech and interfered with academic freedom on university campuses; caused distortions in the music licensing marketplace; relegated consumers to black-market services where adware, spyware, and privacy violations abound; and exposed consumers to ruinous infringement liability damages for conduct occurring in the privacy of their homes.”

Always good to read this from someone else. But there’s more. Intellectual property law attorney Bennett Lincoff looks for an alternative business models so artists can make a living out of their work in a world where copying can’t be stopped. Read Bennett Lincoff essay.

The Patently-O blog conducted an informal survey by asking its readers “Overall, has your company made money from the patent system?”

On the software side, more companies describe themselves as “losing money” rather than “making money” from patents.

The result on Patently-O.

Not surprisingly, pharma companies see the opposite.

Judge Rules Novell Owns Key Software

This is part of my series “valuation of so-called intellectual property is much less than you may think” (at least, if you’re not one of my regular readers).
SCO was claiming “intellectual property” over UNIX software.

A federal judge rules otherwise.

In the middle of the day, SCO’s share was losing 72% hitting an all-time low of 0,35 $ a share, with volumes never seen before.

This is what you should be prepared for if you’re claiming your company is making money out of software “intellectual property”…

You may remember that Broadcom claims Qualcomm is infringing some of its patents, and thus got a ban on Qualcomm patents based cell phone chips.

On the other side, Qualcomm kept secret it was holding video compression patents during the H.264 standardization phase, and then tried to blackmail make money from it. However Qualcomm was found guilty of “patent ambush”.

Qualcomm apologized (but will appeal).

The lesson ? Qualcomm gonna have a hard time enforcing its patent, which is perfectly good under US laws until proven otherwise. This once again calls into question the valuation of a patent…

Ruling Goes Against Qualcomm In Its Broadcom Patent Dispute.

There’s a ban going on preventing import in the US of cell phones based on some Qualcomm 3G patents.
This is a power-saving (software) related patent, by the way.

In some sense, Qualcomm, who is by no way stranger to patent wars, only reap the whirlwind it helped sewed.

But frankly, I find hard to distinguish between alleged “IP” (legally enforced monopoly) protection and plain archaic protectionism in that case. US consumers won’t be able to get access to world top-class cell phones, while the so-called “broadband” access they get is already notoriously lagging behind that of Europe and Asia (more on this, and the OECD full report). And I don’t mention IPTV. The US brought the Internet to the world, but one may wonder what role this IP obsession is playing in the rather slow rythm of telecommunications technology penetration there.

Je viens de lire l’analyse de l’AFDEL sur le marché de l’édition logicielle en France.

Quoi que l’étude soit intéressante, il me semble que l’absence de comparaison avec l’open source brille par son absence.

Un client est en effet souvent face au choix soit d’acheter un progiciel, soit de demander à un intégrateur d’adapter un logiciel open source, ce qui ne génère pas de cash flow associé à des licences et/ou de la maintenance. Autrement dit, l’open source a pour effet de déplacer des budgets de l’édition de logiciel vers le service. Ceci est particulièrement vrai sur les marchés publics, où l’open source effectue une montée en force continuelle depuis quelques années.

Dans ces conditions, essayer d’analyser le marché sous le seul angle de la pure édition de logiciel semble un exercice pour le moins spécieux, en surestimant la part de l’édition de logiciel dans le marché informatique global.

Il est regrettable de miner ainsi la crédibilité d’une étude qui est par ailleurs un travail fort sérieux de consolidation de données brutes…

Joff Wild wrote in the (excellent) IAM blog that he thought people having fought against the european CII directive, and software patents in Europe in general, were wrong, even if “many of them run companies too”.

I am one of them, and I’d like to shed some light on the debate by exploring the differences between the usual defenders and adversaries of software patents.

Read the rest of this entry »

Wired ran a half-serious, half-fun readers’ contest to find ways to fix the “broken patent system” (their words, not mine). Here are the results.

There are some jewels among more mundane ideas. The separation between innovation and patents was outlined. There’s the idea that a patent should cost a recurring fee to its holder (”use it or lose it”), something I believe deeply in the field of copyright, but don’t think could work for patents.

However there’s one sentence that I think is so true that it can’t be repeated often enough, especially when talking with those European commissioners that are still mistaking patents for innovation: With little innovation, we are competing on the basis of labor cost.

In seattlepi.com

A Huge amount, even for Redmond giant.

Ok, this is only first stage, they’ll appeal.

Microsoft’s always been a strong supporter of software patents in Europe (notably through BSA funding). May be they gonna think twice now.
Even if they can settle the case for a reasonable amount of money, how long before they get a hit they can’t stand ?

How many more before people understand that software patents turn the world’s business into a minefield where nobody can master the risks ?

And like with any minefield, everybody gets hurt, everybody loses.