Subject: Re: patent trolls and X-licensors
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Mon, 05 Jun 2006 13:50:23 +0900

>>>>> "Thomas" == Thomas Lord <lord@emf.net> writes:

    Thomas> Stephen J. Turnbull wrote:

    >> You're evidently thinking of the same usage as "fix a cat," no?

    Thomas> No.  Very funny, btw, but no.

Well, that is still the effect.

    Thomas> The patent system isn't currently functioning much as a
    Thomas> patent system for software.  All the action is in (a) it's
    Thomas> negation by cross-licensing strategies and

What do you mean "negation"?  Cross-licensing is more or less the
socially optimal outcome if you measure in terms of consumers'
willingness to pay for the products.  On the one hand you have an
effective oligopoly, with positive returns to R&D for the
oligopolists, while on the other you can hope for price competition,
increasing the effective size of the market and lowering prices for
the customers.  This still sucks from the point of view of free
software, but any effective IP will suck from the point of view of
free software.

    Thomas> (b) it's conversion to a protection racket by trolls.  I'm
    Thomas> trying to cut back on these abuses.

As we've already seen, the Supreme Court of the US is already alive to
this issue.  Patent trolling is contempt of court (at least where it
effectively amounts to entrapment), in spirit if not by the letter of
the law, and the courts will react to it both directly and by lobbying
legislatures to make it a violation of the letter of the law.  It is
not at all clear to me that deliberately trying to prevent patent
trolling is worth doing, except as a byproduct of weakening patents
for the purpose of weakening them.

    >> Your system presumes that patents are invalid,

    Thomas> No.  As in the current situation, my rules affirm that
    Thomas> patents are not presumptively valid.

OK.

    >> and makes it possible for those with deep pockets to violate
    >> the patents of those without such resources with impunity.

    Thomas> Please explain that with a scenario or something.  I don't
    Thomas> see how that follows.

That was a misstatement, I see.  I meant "appropriating the
intellectual assets", not "infringing patents".

How many free software patents do you hold?  How many does the FSF
hold?  (None, I presume, or they'd have a GPL/patent.)  How many of
your programs would you guess meet the current relaxed standards of
patentability?  There are several reasons why A << B, but many come
down to the relative poverty of free software developers, I should
think.

I don't think those with shallow pockets, or no pockets at all, ever
actually get patents on their patentable IP, and your system would
make this even less attractive by simply adding an automatic
$1000-$5000 on top of existing costs.  The big players, on the other
hand, will have stables of "independent" experts on retainer[1].  Who
do you think wins that one?

    >> I still think that the period of public review before approval,
    >> with the option of appeal to the courts after grant, is the
    >> best solution.

    Thomas> A variation fits in with my proposal and doesn't require
    Thomas> negating the privacy of patent applications.

But I *want* that privacy negated.  Negating privacy for those
applications that have passed the PTO's internal review automatically
raises the bar.  If you've got something that you know is minor, it
probably is also at risk of denial in the adversarial stage.

Another effect is that the public discussion will automatically
clarify the meaning of the claims, making it easier for rivals to
assess whether they're likely to infringe, etc.  The practice of
public discussion will also put pressure on the PTO to require
technically sound descriptions.

A public review without anything at stake except *possible* use in a
future contest will simply attract philosophy trolls, while those with
useful input to offer will most sensibly reserve it for the trial,
when the consulting fee value will be highest.

    Thomas> In software, [patents] *don't* contribute to monopolies,
    Thomas> higher profits, etc.

If I've glossed your statement correctly, what evidence do you have
for that claim?


Footnotes: 
[1]  There's no way to avoid this.  Even if you can't formally pay Joe
Schmoe, PhD, Joe can go to work for the Patent Audit Team at KPMG
which coincidentally happens to be your CPA.

-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
http://turnbull.sk.tsukuba.ac.jp/        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory