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Bob Chandler has been a labour and social justice activist his entire adult life and then some! He's also a geek with a capital “G”! FLOSS blog focuses on the world of Free Libre and Open Source Software...with an emphasis on the “Free Libre”!

How patent abuse crushes innovation

| August 27, 2011
End Software Patents

"When Patents Attack!" is the title of a recent episode of This American Life, a program produced by Chicago's National Public Radio affiliate WBEZ Radio. This one-hour episode is an expose of a new and parasitic industry that's burst on the scene in recent years, namely the "patent troll" industry. It also takes a look at the current patent war under way between the giants in the tech sector.

Patent trolls buy up patents, particularly software patents, often by the thousands. They have absolutely no intention of developing new and innovative products or services. Their business is to either litigate or extract cash in the form of licensing fees from those who actually do innovate. Patent trolls frequently make their home in eastern Texas, an area of the world with the most patent troll-friendly courts on the planet.

The simple truth is that very little computer software is new. What is new and innovative is developing new ways to combine many previous software ideas to create a new programme.

Many software ideas have patents that are controlled by patent trolls. Others are controlled by large software corporations or industry consortia. What makes it even more complicated is that many software patents conflict or obviously have been covered by prior art. Since the 1990s, the United States Patent and Trademark Office (USPTO) has been flooded with software patent applications, to the point where very few of them have actually been examined in detail before a patent was issued.

So, if you happen to have a nifty new idea for some new software or a new web service, you'd better hire an army of patent lawyers. As soon as you release your software or service, someone is going to sue you. Or, to make the patent trolls go away, you agree to pay them "licensing fees."

The other development that "When Patents Attack" takes a look at are the large tech companies like Microsoft, Apple and Google who are amassing large collections of patents. These patents are both offensive and defensive weapons that they use against each other.

In July, a consortium made up of Microsoft, Apple, RIM (Research in Motion), Sony, Ericsson and EMC paid $4.5 billion for patents owned by the now bankrupt Nortel Corporation. These patents are to be used in possible future litigation and/or licensing battles against Google and the Android mobile phone operating system.

In recent weeks Google purchased Motorola Mobility for $12.5 billion in what many tech industry analysts feel is a move to acquire Motorola's collection of patents.

It seems like almost every week one large tech giant is suing another tech giant for patent infringement.

None of these billions of dollars that are being spent generate new jobs for anyone other than patent attorneys and the legal bureaucracy. They don't promote innovative new products or services. In fact, they do the opposite. They crush innovation. The costs of acquiring patent portfolios, patent litigation and patent licensing fees are all passed on to the end user in the form of higher prices.

For a number of years, the Free Software Foundation (FSF) has been waging a global campaign called "End Software Patents." In the FSF's view, software is really nothing more than a series of mathematical algorithms. You can't patent math, so why should you be able to patent software?

The European Patent Convention (EPC) forbids patents on computer software. However the courts in a number of EU member countries have over the years poked holes in the EPC. But at least software developers and patent activists have a law on their side that they can use to help defend themselves against patent suits.  

Even this meager protection against software patents is threatened under a proposed "Unitary Patent" system for the EU.

In the U.S., software patents are allowed resulting in this wild west of patent litigation. In Canada last year, the federal court overturned the decision of the Canadian Patent Appeal Board to deny Amazon.com a "business method" patent for their "one-click shopping" method. So it looks like software patents are allowed in Canada too.

New Zealand made a move in the right direction last year by banning software patents in all but embedded devices.

As our interactions with other human beings in the 21st century become increasingly facilitated by computer software, should the tools that we use be totally controlled by corporate oligarchies? What does that mean for our society? Progressives need to give some thought to these issues.

As wonderful a contribution to the debate about patents that "When Patents Attack!" is, I have a couple of small problems with it.

This American Life is only available in the MP3 audio format (as are many other podcasts). What's wrong with that, you say? The MP3 audio format is a patent-encumbered audio format. Anyone developing software that implements this audio format may be required to pay licensing fees to those who control the patent, or end up being sued.

Microsoft was successfully sued for their implementation of the MP3 audio format. I'm not all that concerned about Microsoft being sued, but I am concerned about the possibility of developers of community-based, free (as in freedom) software developers being sued for implementing MP3.

It's much better to make use of a patent and royalty-free audio format like Ogg Vorbis. Ogg vorbis files sound better than MP3, the audio files are somewhat smaller than MP3 and nobody is going to sue anyone or demand licensing fees from software developers who implement it.

The free software Mozilla Firefox web browser for instance, began implementing "out of the box" support for both Ogg Vorbis and the Ogg Theora video format in Version 3.1 What this means is that you can listen to or watch video on sites that use these formats without the requirement for a third party "plug-in" like Adobe's proprietary flash player. You can see how this works and watch this video called Patent Absurdity using a recent version of Firefox.

It isn't possible for the Mozilla Foundation to do this for proprietary audio and video formats without paying licensing fees.

The FSF, in conjunction with the Xiph Foundation, have a "Play Ogg" campaign that encourages everyone to use patent-free audio and video formats. They've also launched an online petition to encourage the producers of This American Life to make the program available in Ogg Vorbis audio. You can sign the petition here.

rabble.ca distributes dozens of wonderful podcasts through the rabble podcast network (rpn). However, rabble and many other progressive sites also make use of the patent encumbered MP3 audio format. At the very least, progressive websites should make audio and video available in both formats and explain why they are making free media formats available. Software is not apolitical.

So you can consider this blog post to be the first signature on a petition requesting that rabble.ca make audio available in Ogg Vorbis!

The other bone I have to pick with "When Patents Attack" is their occasional use of the term "intellectual property." In my view progressives should not lend any legitimacy whatsoever to this term. If someone uses it, challenge them!

The term intellectual property is used to lump together patent, copyright and trademark law as if they were all the same. They aren't.

Patent law grants a temporary monopoly over a new invention. You have to apply to a governmental authority for a patent and, if successful, you are granted a temporary monopoly over that invention. The idea is to encourage people to invent new things by giving them a chance to recoup their development costs in the market.

Copyright law covers works such as written works, art and music. You don't have to apply to a government to obtain copyright over your work. It's automatic.

Trademark law is different again. If someone makes a product, you want to know that you are getting what you paid for. If you buy a dinner plate made by Wedgewood, you want to be sure that your plate was indeed made by Wedgewood and not someone else.

Corporations seek to blur the lines between these separate sets of laws under this umbrella term as an aid to help them lobby governments for more corporate rights.

To learn more about this issue, you can read Richard Stallman's essay, "Did You Say Intellectual Property? It's a Seductive Mirage."

So, if my little rant has tweaked your interest, spend an hour with "When Patents Attack!." You can listen online here.

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