Why it is time to fix software patents

The patent troll problem is not a new one

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The patent troll problem is not a new one. In 1879, an inventor by the name of George B. Selden filed a patent on a horseless four-wheeled carriage, which he called the "Road Engine."

He delayed prosecution of his patent for 16 years in order to increase its effective life (then, patents expired 17 years from issuance, as opposed to 20 years from filing, as they do now). This meant by the time his patent issued, despite never developing a working prototype, Selden was able to claim a patent on the automobile and extract licenses from the budding automobile industry.

And the patent troll problem is obviously not new to the readers of Opensource.com. We have published posts questioning whether patent promote innovation, exploring the role of the abuse of software patents in the debate over patent reform, and noting efforts from various states (including North Carolina) to fight patent trolls.

But, more recently, it seems that the problem of patent trolls has captured the attention of a broader audience. Four years ago, NPR produced an episode of This American Life called "When Patents Attack!" And, four months ago, John Oliver devoted the bulk of his time on Last Week Tonight, to raising awareness about patent trolls. "Most of these companies don't produce anything—they just shake down anyone who does, so calling them trolls is a little misleading—at least trolls actually do something, they control bridge access for goats and ask fun riddles," he explained. " Patent trolls just threaten to sue the living s*** out of people, and believe me, those lawsuits add up."

Now, The Economist has decided that, once and for all, it is Time to fix patents. The article begins by rebutting the presumption that patents spur innovation, and claims that, because of patent trolls, the patent system is a net drain:

Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils.

It goes on to propose some reform proposals that are more radical than those currently being debated in Congress:

One aim should be to rout the trolls and the blockers. Studies have found that 40-90% of patents are never exploited or licensed out by their owners. Patents should come with a blunt “use it or lose it” rule, so that they expire if the invention is not brought to market. Patents should also be easier to challenge without the expense of a full-blown court case. The burden of proof for overturning a patent in court should be lowered.

Patents should reward those who work hard on big, fresh ideas, rather than those who file the paperwork on a tiddler. The requirement for ideas to be "non-obvious" must be strengthened.

Patents also last too long. Protection for 20 years might make sense in the pharmaceutical industry, because to test a drug and bring it to market can take more than a decade. But in industries like information technology, the time from brain wave to production line, or line of code, is much shorter. When patents lag behind the pace of innovation, firms end up with monopolies on the building-blocks of an industry.

The problem of patent trolls is not new or small. It is going to take bold ideas and broad collective action to solve it. We should welcome ideas and input from as many sources as possible, even—or perhaps especially—those that are novel and non-obvious.

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1 Comments

MichaelJackson

Patents are big business. IBM received $2 billion annually from patent trolling:
http://arstechnica.com/business/2014/03/twitter-paid-36-million-over-ibm...

In fact it was IBM that was the first company to systematically use FUD:
https://en.wikipedia.org/wiki/Fear,_uncertainty_and_doubt#Definition
"...FUD was first defined with its specific current meaning by Gene Amdahl the same year, 1975, after he left IBM to found his own company, Amdahl Corp.: "FUD is the fear, uncertainty, and doubt that IBM sales people instill in the minds of potential customers who might be considering Amdahl products..."

More IBM patent trolling:
http://www.forbes.com/asap/2002/0624/044.html
https://www.techdirt.com/articles/20071021/141623.shtml
"IBM accused Sun of patent infringement, but when Sun engineers and lawyers pointed out how they didn't infringe on the patents in question, IBM's lawyers responded: "OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Amarok [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" - Sun payed IBM.

More IBM patent trolling, James Gosling (father of Java) blogs:
http://nighthacks.com/roller/jag/entry/quite_the_firestorm
"...In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure...."

Here is a case where IBM released 511 patents to the open source community, but when the IBM Mainframe emulator TurboHercules tried to use one of the patents, IBM struck back and broke their word. The Mainframes have slow cpus, and a x86 server can emulate them in software really fast, that is the reason IBM cares so much about emulators. If Mainframes were really fast, emulators do run 5-10x slower than native code, so emulators would not be a threat to IBM if they were slow:
http://arstechnica.com/information-technology/2010/04/ibm-breaks-oss-pat...

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