The Dangers of a Patent War Chest 125
Timothy B. Lee writes "I've got an article in the New York Times in which I make the case against software patents. Expanding on a point I first made on my blog, I point out that Microsoft has had a change of heart on the patent issue. In 1991, Bill Gates worried that 'some large company will patent some obvious thing' and use it to blackmail smaller companies. Now that Microsoft is a large company with a patent war-chest of their own, they don't seem so concerned about abuse of the patent system. I then describe how Verizon's efforts to shut down Vonage are a perfect illustration of Gates' fears."
who's suing who? (Score:4, Insightful)
One of the big problems (Score:5, Insightful)
Patents should not be able to cover concepts only very specific processes. If Gene Roddenberry's heirs patent the "concept" of a teleporter, should that give them rights over someone who actually figures out the physics and machinery to make one? Even if the inventor got the idea from watching Star Trek?
It's always the incumbant (Score:4, Insightful)
Call Microsoft's bluff (Score:5, Insightful)
http://digitaltippingpoint.com/wiki/index.php?tit
Of course, please consult with a lawyer if you are making serious plans to challenge Microsoft in court. Also, of course it goes without saying that you should probably consult other big players on the FOSS side, such as the Linux Foundation and the Open Innovation Network, etc. So while I can't give legal advice to anyone, really folks, I don't think there's any there there, to quote Gertude Stein. Just my two cents.
In fact, I believe that Microsoft is doing this patent stuff because they want to ease into distributing GNU Linux themselves, and they want to be the market leading GNU Linux distro. They really kind of are forced to do it. GNU Linux and FOSS are eroding their revenue base. They have read Clayton Christensen's work. They know what a disruptive innovation is. They know that the only market leaders to have survived disruptive innovations are those who spun off an independent separate little company that sold the disruptive products or services. As that spin-off grew, the companies who were smart enough to do it, like Quantum spun off Plus, eventually found that the disruptive little company grew to a point where the two companies could merge, and thus gracefully transition to the new disruptive market. Microsoft is planning to buy a distro, and they are insulating themselves from legal attack once they get there. They are also probably planning to try to bust the GPL in court, which is why they need this legal protection. They are looking to bust the GPL down to something that they like, such as a BSD or MIT or Apache-type license.
So in the meantime, let's make them earn their place. Let's challenge them. Let's unmask their FUD. Sign the list!
Re:who's suing who? (Score:5, Insightful)
Re:F*** Microsoft. (Score:5, Insightful)
Infringement is inevitable when people are allowed to patent vague concepts and intangible ideas. This practice has to be stopped.
A different threat, though (Score:4, Insightful)
Back when BillG made that comment, the primary threat to a company was another company who made things. In that environment a patent war chest is a defense: since that other company makes things, if they sue you you can search your war chest for patents they might infringe upon in return. Today, though, the primary threat is from IP holding companies. Against them, the size of your patent war chest doesn't matter. They don't make anything, they don't do anything, therefore there's nothing you can go after no matter how many patents you hold (unless you happen to be the lucky soul holding the patent on sueing people for patent infringement). I think even Microsoft is slowly coming to the realization that patents pose a greater threat to them than their value as a weapon.
Re:F*** Microsoft. (Score:5, Insightful)
I think you misread the GP's point. He wants Microsoft to open their code base so other patent holders can pour through Microsoft's code to see if Microsoft is violating anybody else's patent. As in what's good for the goose is good for the gander Not that I agree with him, it is an extreme response, and he's kind of missing the point of the article which is that the current patent system actively punishes those who try to "remain pure" and not stockpile patents. But it does also seem a little unfair that it's easier to get away with violating a software patents by keeping your code hidden. After all, if you're going to own software patents, what's the point of keeping your code secret? You can sue for patent violation if anyone tries to steal what you've done. If you're going to do that anyway, maybe it's only fair that everyone else in the world who thinks you might be violating their patent can check it out before they decide to sue you.
"If the open source community were really that concerned, they'd hire a lawyer to dig through the patents that Microsoft controls. They are, after all, a matter of public record."
I also respectfully disagree with this point. You make it sound so simple. One of the basic complaints people have with the patent system in general and software patents in particular is based on the incredible amount of work involved with "digging through patents" owned by everyone in the world (cuz really, what's the use in just digging through Microsofts patents?) and making sure you're not infringing any. It's just horribly inefficient and bad for innovation if the man-hours involved in avoiding patent infringement are comparable to the amount spent just writing software in the first place.
We need Gates' idea from 1991 (Score:3, Insightful)
I've commonly pointed out that if the hammer was patented any other idiot could make hammers but they would be forced not to. However even that doesn't sell people on why patents are useless because people also see a need for patents. What needs to happen is people to realize exactly what can be patented, and how much you can charge for the use of a patent. We don't need to make them worthless, but litigation over them is easy because you don't have to make your patent available at a reasonable course, and you can infringe on a patent with out realizing it.
MS is using its patent warchest defensively (Score:3, Insightful)
That's a poor assessment of this situation. MS is a bully but they are not using their patents. Their patent warchest seems defensive in nature. MS has deep pockets and is a prime target for the lawsuit happy patent portfolio companies that create nothing other than lawsuits. For a company with deep pockets, the patent warchest is an unfortunate necessity.
Re:F*** Microsoft. (Score:2, Insightful)
You make money with software by engaging in business where you use that software to do stuff. A to Z, get a yellow pages and find a business. Software as a stand alone business will be going the way of the buggywhip industry within this generation. Software will still be written, programmers will still be paid, but it won't be the business model of yore,nor the payscale they are expecting to continue forever, in other words, the 90s are OVER.
All the digital bits businesses will have to face reality, replicator technology is here for that and it works. Musicians will have to go back to touring and be content with what they make there. Programmers will actually have to work for some company that makes useful stuff of the tangible variety that people need and want.
Selling operating systems and office applications, etc is *rapidly* approaching the "Are you kidding me? Are you serious? You want HOW MUCH for that???" stage.
It's not there yet obviously, but it is getting there a lot faster than MS shareholders wish it. They will have to be content with the millions or billions they have made so far and actually go back to doing useful work. Work once, get paid once, that is what is happening globally except for a few software giants and the MAFIAA. Work once get paid forever and ever and ever and ever (the traditional software selling model and music "distribution" model) isn't going to be flying for much longer in a hungry global economy where replicator technology exists and is ubiquitous..
Fair warning, milk it and cash out while you can. There's an extra two billion people rapidly approaching middle class and they want to be paid, too, and they won't be subsidizing stuff that costs two cents to reproduce in full, not for hundreds of dollars instead of two cents they won't be. Either that or you will be forced to start paying them what their electronic gadgets and cars and energy, etc are really worth so that those workers can enter middle class. One or the other, but global exploitation of cheaply reproduced digital bits while they want to exchange actual useful tangible articles will not last much longer, their hunger will seriously outweigh the importance and power of the digital bits sellers arrogance.
I'll repeat, it isn't the 90s any longer, stuff has changed and is still changing. People who just refuse to see it or argue against just raw data are doomed to crash hard when they do crash. People who can see how the global economy is shifting can see two things-tangibles still rule, and the near free ride the technological west has gotten for a long time is about to be stomped flat and discarded, because the developing world now has enough of their own tech and a billion kids in school to make any "need" for western digital bits or other "IP" at high dollar prices rather
You can see it already with the huge YAWN that is Vista and the mass ignoring of the MAFIAA gouging level prices.
Humanity develops work around to redundant or overly expensive stuff.
Artificial scarcity will not work when there is no true scarcity.
Elite high paying jobs are only elite when just a few people can do them, after that, once there are tens of millions doing the jobs..well... it is worth of at best what -say- mid level factory line worker pay is right now. Look at the high cost medical industry in the west, in a freaking crisis because everyone in it just assumes ths that they could keep upping prices forever because they are 'elite' and few people could do what they do. the global workaround that is exploding is called "medical tourism",and is now about the fastest growing medical
Re:What are we doing? (Score:3, Insightful)
Re:who's suing who? (Score:3, Insightful)
Not in the USA they're not.
There's a HUGE difference between Amy Lee saying "Hey, that guitar solo's right out of The Open Door" and her saying "I'm suing you for making an unlawful derivative work." Or, to use physical law as a property, how about the difference between "You're on private property" and "I'm calling the Sherrif."
The victim of a tort, like patent infringement, always has the option of not going to court. The few apparent exceptions are cases where not acting may be a denial of ownership -- and in those cases, all you need to do is to get the offender to recognize your ownership.
The American dream (Score:4, Insightful)
Was it an epiphany (Score:2, Insightful)
Do you suppose when Bill though "'some large company will patent some obvious thing' and use it to blackmail smaller companies" it was one of those evil moments of clarity, like when L. Ron Hubbard thought "The way to make real money is to invent a religion".
Re:Call Microsoft's bluff (Score:3, Insightful)
GNU Linux is a low-end disruption and an emerging market disruption. There has been lots of debate in this thread already about the low end disruption, but both sides seem to agree on one basic thing: there is a group of consumers who are either not willing or not able to pay the premium (relatively speaking) charged by the market leader (Microsoft) for its products. Examples are most consumers in the developing world; and schools in the United States, or at least most of the urban areas in California (the case that I am most familiar with, since I volunteer for a school which cannot afford Microsoft Windows and Microsoft Office for its students). IMHO, there is no doubt that these consumers are "overshot", which is also a term that Christensen coined. These consumers are overshot because they really don't need all of the features of Excel, for example, which are used by only 5% of Microsoft Office customers. A simple way of thinking of the term "overshot" is movie theater popcorn in North America. When you go to a movie theater in North America, the pricing encourages you to get a large barrel of popcorn, which is only $1.00 more than the tiny bag. You really didn't want the big barrel, but the little bag was not enough, so you pay for more than you will use. The big barrel "overshoots" your needs, in the same way that Excel overshoots the needs of most users, many of whom will now be able to be happy with Google Docs and Spreadsheets, which is a low-end disruption.
An example of an emerging market disruption is Google's classic search, as well as Google Earth. In both cases, Google uses off-the-shelf modular components (the LAMPPP stack) to allow its customers to do something that they were not able to do before; and, more important, the channels for delivering that service exist outside the business network of the market leader in desktop software (Microsoft). Google's main revenues are linked to delivering software as a service; Microsoft's main revenues are linked to delivering software as a product.
These products are disruptive because they grow outside Microsoft's business network (OEM distributors), but provide functionality which competes peripherally with Microsoft's products. As these products are becoming more polished, they are taking on functionality which are starting to approach the functionality of the market leader's major revenue winners.