“use them to try to get cross-licensing,” but it just doesn’t work well. It’s not an effective strategy if you’ve got a small number of patents.
Suppose you’ve got three patents. One points there, one points there, and one points there, and somebody over there points a patent at you. Well, your three patents don’t help you at all, because none of them points at him. On the other hand, sooner or later, somebody in the company is going to notice that this patent is actually pointing at some people, and [the company] could threaten them and squeeze money out of them—never mind that those people didn’t attack this company.
So if your employer says to you, “We need some patents to defend ourselves, so help us get patents,” I recommend this response:
Boss, I trust you and I’m sure you would only use those patents to defend the company if it’s attacked. But I don’t know who’s going to be the CEO of this company in five years. For all I know, it might get acquired by Microsoft. So I really can’t trust the company’s word to only use these patents for defense unless I get it in writing. Please put it in writing that any patents I provide for the company will only be used for self-defense and collective security, and not for repression, and then I’ll be able to get patents for the company with a clean conscience.
It would be most interesting to raise this not just in private with your boss, but also on the company’s discussion list.
The other thing that could happen is that the company could fail and its assets could be auctioned off, including the patents; and the patents will be bought by someone who means to use them to do something nasty.
This cross-licensing practice is very important to understand, because this is what punctures the argument of the software patent advocates who say that software patents are needed to protect the starving genius. They give you a scenario which is a series of unlikelihoods.
So let’s look at it. According to this scenario, there’s a brilliant designer of whatever, who’s been working for years by himself in his attic coming up with a better way to do whatever it is. And now that it’s ready, he wants to start a business and mass-produce this thing; and because his idea is so good his company will inevitably succeed—except for one thing: the big companies will compete with him and take all his market the away. And because of this, his business will almost certainly fail, and then he will starve.
Well, let’s look at all the unlikely assumptions here.
First of all, that he comes up with this idea working by himself. That’s not very likely. In a high-tech field, most progress is made by people working in a field, doing things and talking with people in the field. But I wouldn’t say it’s impossible, not that one thing by itself.
But anyway the next supposition is that he’s going to start a business and that it’s going to succeed. Well, just because he’s a brilliant engineer doesn’t mean that he’s any good at running a business. Most new businesses fail; more than 95 percent of them, I think, fail within a few years. So that’s probably what’s going to happen to him, no matter what.
Ok, let’s assume that in addition to being a brilliant engineer who came up with something great by himself, he’s also talented at running businesses. If he has a knack for running businesses, then maybe his business won’t fail. After all, not all new businesses fail, there are a certain few that succeed. Well, if he understands business, then instead of trying to go head to head with large companies, he might try to do things that small companies are better at and have a better chance of succeeding. He might succeed. But let’s suppose it fails anyway. If he’s so brilliant and has a knack for running businesses, I’m sure he won’t starve, because somebody will want to give him a job.
So a series of unlikelihoods—it’s not a very plausible scenario. But let’s look at it anyway.
Because where they go from there is to say the patent system will “protect” our starving genius, because he can get a patent on this technique. And then when IBM wants to compete with him, he says, “IBM, you can’t compete with me, because I’ve got this patent,” and IBM says, “Oh, no, not again!”
Well, here’s what really happens.
IBM says, “Oh, how nice, you have a patent. Well, we have this patent, and this patent, and this patent, and this patent, and this patent, all of which cover other ideas implemented in your product, and if you think you can fight us on all those, we’ll pull out some more. So let’s sign a cross-license agreement, and that way nobody will get hurt.” Now since we’ve assumed that our genius understands business, he’s going to realize that he has no choice. He’s going to sign the cross-license agreement, as just about everybody does when IBM demands it. And then this means that IBM will get “access” to his patent, meaning IBM would be free to compete with him just as if there were no patents, which means that the supposed benefit that they claim he would get by having this patent is not real. He won’t get this benefit.
The patent might “protect” him from competition from you or me, but not from IBM—not from the very megacorporations which the scenario says are the threat to him. You know in advance that there’s got to be a flaw in this reasoning when people who are lobbyists for megacorporations recommend a policy supposedly because it’s going to protect their small competitors from them. If it really were going to do that, they wouldn’t be in favor of it. But this explains why [software patents] won’t do it.
Even IBM can’t always do this, because there are companies that we refer to as patent trolls or patent parasites, and their only business is using patents to squeeze money out of people who really make something.
Patent lawyers tell us that it’s really wonderful to have patents in your field, but they don’t have patents in their field. There are no patents on how to send or write a threatening letter, no patents on how to file a lawsuit, and no patents on how to persuade a judge or jury, so even IBM can’t make the patent trolls cross-license. But IBM figures, “Our competition will have to pay them too; this is just part of the cost of doing business, and we can live with it.” IBM and the other megacorporations figure that the general dominion over all activity that they get from their patents is good for them, and paying off the trolls they can live with. So that’s why they want software patents.
There are also certain software developers who find it particularly difficult to get a patent license, and those are the developers of free software. The reason is that the usual patent license has conditions we can’t possibly fulfill, because usual patent licenses demand a payment per copy. But when software gives users the freedom to distribute and make more copies, we have no way to count the copies that exist.
If someone offered me a patent license for a payment of one-millionth of a dollar per copy, the total amount of money I’d have to pay maybe is in my pocket now. Maybe it’s $50, but I don’t know if it’s $50, or $49, or what, because there’s no way I can count the copies that people have made.
A patent holder doesn’t have to demand a payment per copy; a patent holder could offer you a license for a single lump sum, but those lump sums tend to be big, like US$100,000.
And the reason that we’ve been able to develop so much freedom-respecting software is [that] we can develop software without money, but we can’t pay a lot of money without money. If we’re forced to pay for the privilege of writing software for the public, we won’t be able to do it very much.
That’s the possibility of getting a license for the patent. The other possibility is to invalidate the patent. If the country considers software patents to be basically valid, and allowed, the only question is whether that particular patent meets the criteria. It’s only useful to go to court if you’ve got an argument to make that might prevail.
What would that argument be? You have to find evidence that, years ago, before the patent was applied for, people knew about the same idea. And you’d have to find things today that demonstrate that they knew about it publicly at that time. So the dice were cast years ago, and if they came up favorably for you, and if you can prove that fact today, then you have an argument to use to try to invalidate the patent. And it might work.
It might cost you a lot of money to go through this case, and as a result, a probably invalid patent is a very frightening weapon to be threatened with if you don’t have a lot of money. There are people who can’t afford to defend their rights—lots of them. The ones who can afford it are the exception.
These are the three things that you might be able to do about each patent that prohibits something in your program. The thing is, whether each one is possible depends on different details of the circumstances, so some of the time, none of them is possible; and when that happens, your project is dead.
But lawyers in most countries tell us, “Don’t try to find the patents in advance,” and the reason is that the
