posted by Christian Schaller on Tue 19th Apr 2005 18:26 UTC
IconWe today face the risk of software patents being approved in the EU because not enough parliamentary members will be showing up to vote. Due to this it is important for those of us who oppose software patents to make sure EU parliament members see the damage software patents cause, so they realize it is important to be there to vote providing the needed absolute majority. But sending out a clear message is also important for the process of patent reform in the US and other places who have fallen into the trap of introducing them.

In order to successfully reach out we need to realize what the priorities of our target groups are and how to talk to them. The goal of this article is to present my thinking on the subject of software patents and how I expect our major target groups can be reached with the message that software patents are a bad idea.

Why more politicians don't react

The first major mistake many people who oppose software patents make when they try to advocate their view is make it mainly an issue of ideology and principles. Lawrence Lessig did this when he argued in front of the US Supreme Court over the extension of Copyright in the Eldred case and came up short. What he learned then and which others need to learn now is that most people, including politicians and judges, don't really care that much about ideology and principles anymore, except in festive talks. People in general and the politicians they elect are mostly worried about material issues like economic growth and employment numbers as these are the issues which tend to determine election outcomes and personal finances. So in order to win this debate we need to get politicians and the general public to see that software patents are not helping create jobs and economic growth, but rather have the opposite effect. In a situation where software patent supporters manage to stack a claim that a removal of patents will cause job loss and while the counter argument is that we have a right to tinker, the weight of arguments, in the eyes of politicians and decision makers, become very favorable to the software patents supporters. Lets stop making it easy for them.

Why industry leaders stay silent or support patents

Many find it surprising that more of the top people in the industry do not speak out against patents, that cases like the Sun-Kodak settlement, the Forgent JPEG patent claim or the Microsoft-Eolas case should awaken these companies and their leaders to the dangers that software patents pose to their ability to innovate and develop new software. But if you look at it from their viewpoint its becomes quite clear why its hard to speak out against patents. They are hired to represent the interest of their shareholders and the main interest of their shareholders in getting a higher share price. The people deciding what the share price should be is Wall Street. Wall Street when they try to figure out the value of a company they look at many factors, among them the amount of patents and other assets a company own. If all software patents where dissolved over night then Wall Street's probable reaction would be to cut the valuation of most of the big tech companies. Which of course would make share holders rather upset and they would not be to pleased with the CEO who argued for doing away with software patents. So it is not primarily Steve Jobs, Steve Ballmer, Sam Palmisano or Scott McNeally we need to convince that software patents are not an asset to the industry, I think they already know it, but are in a position where it would be self-destructive to say so. The job we need to do here is make sure Wall Street realizes that with the new generation of companies doing nothing but filing and buying patents, mostly of dubious quality and correctness, followed by going after the people with big pockets, software patents are a liability for the companies in the software industry, not an asset.

The day we make Wall Street see the true effect of software patents, that is the day they will start punishing the share price of software companies. And that is the day I think we will see a lot of industry leaders feeling much more free to join us in our struggle to get software patents dissolved.

The big versus the small

Even with Wall Street seeing the truth we can not be sure that the big business will come out supporting the complete removal of software patents. An example here is IBM who recently came out requesting reform rather than full abolishment, funny enough stating that the reason they don't want all patents invalidated is because they worry about customer backlash if all the patents the customers are now forced to pay to license where found not to be valid anymore.

The big software companies rarely use patents against eachother because using patents against the other giants will lead to them hitting back with their own patent portfolios. Which is also why most of these companies have extensive cross licensing deals between eachother.

But using patents to kill of small and mid-size competitors who have not had the resources to build up a patent pool yet is a different matter of course. Luckily some of the big players like IBM and Microsoft don't dare to do this as they are or have been in the antitrust spotlight for monopolistic practices and market share abuse. But the fear, uncertainty and doubt generated in the marketplace due to all these subsisting patent mines can be damaging enough. And of course there is nothing stopping someone like Microsoft to sell some patents to a patent litigation company, including licensing the patents back to Microsoft as part of the deal, then letting that patent litigation company loose upon their competitors. Microsofts eager willingness to throw money SCO's way to help fund their ongoing legal battle with IBM and the worlds Linux developers only shows that such tactics are not below them.

Table of contents
  1. "Patents, Page 1/3"
  2. "Patents, Page 2/3"
  3. "Patents, Page 3/3"
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