Archives: Software patents
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:
“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.
Not surprisingly, pharma companies see the opposite.
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.
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.
Should this thing full of software be patentable or not ? A test.
I’ve once again came across a paper by a reputable magistrate and economist that distinguishes “open source” or “free” (like in free beer) software and “real economy” software.
This is a common mistake, especially in software patents promoters circles, but not only.
I’d like to shed some light on the issue by telling you a bit about the shoe business.
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:
- 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 ?
- 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 21st century information economy.
Why should we tolerate it then ? Don’t we want innovation and growth ?