More opposition to patents on abstract ideas

This is good news and I hope that the opinion of Cato Institute, the Competitive Enterprise Institute, and the Reason Foundation will help with the debate against software patents also in Europe.

It’s not much of an exaggeration to say that the crisis in our patent system is mostly a crisis in the new categories of patents that the Federal Circuit unilaterally legalized during the 1990s. On Friday, three leading libertarian think tanks added their voices to the growing chorus of parties calling on the Supreme Court to reverse the Federal Circuit’s mistake and restore the traditional rules excluding abstract ideas from the reach of patent law.

via Libertarian Think Tanks Oppose Patents On Abstract Ideas – Forbes.

How Intellectual Ventures Became Americas Biggest Patent Troll

NPR has a great story about software patents and how they’re abused especially by one firm that sues and demands payments from innovators. The story describes the business model of Intellectual Ventures, a firm whose only purpose is to accumulate patents and demand fees from anybody that is trying to bring a product to the market.

The company has received about 1,000 patents on stuff it’s come up with at the lab; it’s purchased roughly 30,000 patents from other people. In fact, nothing that’s come out of this lab — not the mosquito zapper, not the nuclear technology — has made it into commercial use.

Intellectual Ventures is the company behind Lodsys, the company suing independent iPhone app developers for a silly patent violation. Lodsys has no employees, it’s not making any product, it’s not producing any innovation. It sues people that create jobs and deliver products.

Did you think that patents were introduced to foster innovation? To give an incentive for inventors to bring new products to the society and solve problems? Think again. Companies like Intellectual Ventures are just a problem for startups and innovators. Venture investor Chris Sacca even said to NPR reporters that these trolls remind him of “a mafia-style shakedown, where someone comes in the front door of your building and says, ‘It would be a shame if this place burnt down. I know the neighborhood really well and I can make sure that doesn’t happen.'”. The FSFE raised this issue in Europe many years ago. The US patent system needs to be reformed, now.

via Intellectual Ventures And The War Over Software Patents : Planet Money : NPR.

Why I think we won the battle against software patents

After many years talking about the damages to innovation created by patents on software, I believe that the we can consider the battle won: the free software/open source movement should focus its attention on other battles.  While I agree with Florian Mueller that the Europeans are still pestered by patents on software, I believe that our campaign was to mainly raise wider awareness.

During the long march to reject the directive on ‘computer implemented inventions’ we put the issue of software patents in front of millions of Europeans, thousands of small businesses and hundreds of MEPs. We convinced the majority of  MEPs to reject, for the first time ever, a Directive approved by the Council. We started a debate about the threats to innovation posed by patents and we made sure the business community knew about the risks to their activity. The issues of patents on software and math are now visible to all those affected in the business community: entrepreneurs, small-and medium-size businesses and big business.

The business community at large is the ultimate victim of software patents. With trolls constantly at work, all companies face potential damage. Companies, small and big, are now aware of the problem and the debate about how to fix it is now a fire that burns on its own. Academics publish a lot more papers and research projects demonstrating that the current patent system is broken and dysfunctional and may be harming economic development of the US.

Looking at it strictly from the perspective of the free software movement: we won! We did our job, software patents are now a mainstream issue, our arguments are being pushed forward by people with vast resources, much more than the FSF or OSI can put together. I believe that Google, HTC, Apple, Microsoft etc. are the main victims of this stupid system. Some argue that the whole US and European commercial power is being harmed in the competition with China. Let them finish the fight: they have all reasons to want to change the system.  We as the free software movement can continue provide expertise when needed, follow the progress of the issue.

We need to liberate resources and energy for other fights that are still not mainstream: online privacy, DRM and locked devices are some that come to mind.

I believe that the victory in the European Parliament was and still is a full clear victory.  As Jack Welch teaches: celebrating a victory is always a good thing, even a small one.

Florian’s comment on victory

Florian Mueller left a comment on my previous post about the software patents campaign. I promised to reply soon and I will, but meanwhile I think it’s worth reading, if you haven’t already:

I was quite actively involved in the fight against that proposed EU directive, and I was in Strasbourg on the day of that memorable vote. It was a victory for us, but it was merely a defensive victory. We did not bring about legislation in favor of our position — we just prevented what I believe would have exacerbated the situation quickly at the time.

Now, almost six years later, I no longer believe we can claim (as you do at the end of your post) that “we won”. The European Patent Office grants more software patents than ever; national high courts of major EU member states uphold software patents; and software patent holders enforce their rights aggressively in Europe, such as Apple (please take a look at the patents listed on page 33 of this document).

So while it was appropriate in 2005 to call this a victory, I don’t think it’s still the right thing to say in light of where things stand today. Frankly, if the directive in the form originally proposed by the European Commission had been promulgated, there would just be a greater degree of clarity and Europe-wide harmonization about how it’s applied, but software patents are a part of today’s European reality regardless of what we achieved back then.

The one respect in which that victory still matters is that it strengthened EU democracy. It was the first time in EU history (and I believe it’s still the only one) that the European Parliament rejected a legislative proposal by the Council without going into conciliation. This strengthens Parliament’s role in negotiations and has probably affected many legislative processes ever since.

But on the software patent front, it doesn’t matter too much anymore. Think of soccer — a sport in which underdogs sometimes achieve spectacular results. If an underdog manages to hold a much stronger opponent to a goalless draw, that’s remarkable and, at the time it happens, it’s a reason to celebrate. But in order to win one has to be capable of scoring goals (not only able to prevent them). Our movement never ever scored a goal in an offensive sense. We never went on the attack and said ‘this is the kind of legislation we want to do away with software patents’ and got such a proposal passed into law.

A team that never scores a goal may achieve a goal in soccer because the match will be over after 90 or 120 minutes plus stoppage time. In politics, there is no 90 or 120 minute limit. Things go on and on and on. And if you never score a goal for so many years — almost six years now in this context –, your opponent will at some point score and then you’ve lost.

It’s a nice romantic idea that millions of people can win over millions of euros. But in a matter of economic policy making, it’s nothing more than a dream, and in this case it’s a dream that didn’t truly materialize.

Ultimately, if politicians have to decide on how to regulate a commercial matter, they will listen to business. I don’t know of any large corporation that opposes software patents (even Google is in favor of its own software patents). I know some small and medium-sized companies who are against them, but they never took serious action.

Politicians won’t listen to organizations like the FSF(E) and FFII (or whatever little is left of the FFII by now…) to the extent that they would abolish an intellectual property rights regime that’s strong, resilient, and deeply entrenched. That would only happen with strong business support. The absence of such support indicates that most companies — unlike idealists — simply look at software patents as a fact of life, as a cost of doing business. Against that mentality, you and the organizations you mention stand no chance — absolutely no realistic chance ever — to prevail, and that’s why I for my part dropped out of this almost 4 1/2 years ago and now try to focus on how to deal with the fact of life that we all have to live with.

Florian blogs regularly on FOSS Patents about software patents in Europe.

When millions of people beat millions of dollars

Every time I hear someone saying that something can’t be done, it’s too hard, there are interests and forces against you that are too big, I remember this David vs. Goliath photo and the months, years of fight that lead to a big victory. And the lessons I learned on how to talk to high-level politicians and super-lawyers,  how to influence people and turn enemies into allies.

For years, the free software movement rallied European citizens and small and medium businesses to reject a very bad directive on patentability of ‘computer implemented inventions’ (in other words, software) that would have damaged society in the long run. We managed to coordinate a strategy between different organizations, like FFII and FSFE. The movement succeeded in building a vast coalition of supporters against the directive, across the political spectrum. We isolated European giants SAP and Nokia, left alone to support a directive that appeared to be written by US-based multinationals.

This picture taken the day of the vote in 2005 shows  the different size of the budget: the big guns had a full boat floating in the canal next to the European Parliament in Strasbourg and a huge banner. Our movement had canoes and small flags.

They had millions, we were millions. And we won.

Software Patents Kill Innovation

Microsoft cannot be trusted

My friend Gianugo Rabellino has a tough job trying to help Microsoft clean up its image of anti-open source company. The best comment I read about its latest attack on Android and Linux (the ebook reader is just an excuse, I agree with Steve J. Vaughan-Nichols) using the equivalent of nuclear weapons (software patents) is on TechCrunch:

Microsoft still has many talented people doing great things. Kinect and even Windows Phone the product, not the strategy jump to mind. But the suits and lawyers are burying all of that under 700 metric tons of bullshit

Read  Vivek Wadhwa’s Why We Need To Abolish Software Patents if you’re still not convinced that this is madness.

Il miraggio del brevetto comunitario

Stamattina ho trovato nella mia casella di posta un messaggio da una persona che cerca informazioni riguardo la brevettabilità delle idee. La domanda in particolare mi ha colpito, come sempre:

se ho ben capito le idee non sono brevettabili e quindi […] chiunque può rivedere la mia idea e ricopiarla con un altro marchio?

Mi colpisce sempre come qualcuno possa pensare di basare il vantaggio competitivo di un’azienda solo su un brevetto. Evidentemente la propaganda pro-brevetti fa breccia nelle menti di alcuni e certamente il mito del povero inventore che di colpo diventa ricco senza faticare è dura a morire. La dura realtà è che un brevetto da solo quasi non basta nemmeno alle aziende farmaceutiche per ottenere un vantaggio competitivo sostenibile. La recente battaglia tra Nokia e Apple dimostra che i brevetti oggi non servono affatto a stimolare l’innovazione, ma piuttosto a limitarla. Nokia ha smesso di innovare, Apple la sta superando ma la prima si è lanciata alla rincorsa con gli uffici legali.

Le ho consigliato di leggere il post di Seth Godin su come proteggere le ideee (non si può) e il libro The art of the start di Guy Kawasaki. A tutti consiglio anche di firmare la petizione di FFII per sensibilizzare i politici europei sui danni che il brevetto comunitario può fare alle imprese nazionali.

Software patents will not pass in Europe

The last lesson of the MBA was about patents, how to use them strategically for your business. The professor was really good at explaining all the steps that you must follow before you start any innovation process and what traps expect you at each step you make.’  Funny enough, all his lesson confirmed me that the costs of patenting anything are far superior to the possibility to make money off of them. Probably the biotech sector is different, but honestly I know nothing about that so I can’t decide.’  For the other industries the patent system is like a lottery. And any grad school student knows that the most effective way to win a lottery is to save money not playing.

Some lobbyist in the EU keep trying to pass software patents though, because they represent the interests of the lottery owners: they make money because they are the owners of the casino.’  FFII is the main organization fighting constantly these lobbyists. Support FFII, sign the petition against software patents in Europe. Keep Europe a place where there is freedom to innovate.