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www/philosophy patent-practice-panel.html
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From: |
John Sullivan |
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Subject: |
www/philosophy patent-practice-panel.html |
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Date: |
Fri, 16 Jun 2006 20:32:50 +0000 |
CVSROOT: /web/www
Module name: www
Changes by: John Sullivan <johnsu01> 06/06/16 20:32:50
Added files:
philosophy : patent-practice-panel.html
Log message:
Removed DOS line endings.
CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/patent-practice-panel.html?cvsroot=www&rev=1.1
Patches:
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+
+ <head>
+ <title>Daniel Ravicher's FFII panel presentation, November 10, 2004 - GNU
Project - Free Software Foundation (FSF)</title>
+ <meta http-equiv="content-type" content='text/html; charset=utf-8' />
+ <link rel="stylesheet" type="text/css" href="/gnu.css" />
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+ </head>
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+ <!-- This document is in XML, and xhtml 1.0 -->
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+ <body>
+
+ <h3>New developments in patent practice: assessing the risks and cost of
+ portfolio licensing and hold-ups</h3>
+
+ <p>
+ by Daniel B. Ravicher
+ </p>
+
+ <p>
+ <a href="/graphics/philosophicalgnu.html"><img
src="/graphics/philosophical-gnu-sm.jpg" alt="" width="160" height="200" /></a>
+ </p>
+
+ <p><em> This is a transcript of a panel presentation given by Daniel B.
+ Ravicher as the executive director of the Public Patent Foundation on
+ Wednesday, November 10, 2004, at a conference organized by the Foundation
+ for a Free Information Infrastructure (FFII) in Brussels, Belgium. The
+ transcription was done by Aendrew Rininsland. </em></p>
+
+ <p>Thanks. I think, for me, the whole two days of conferences boils to
+ really one question, and the whole debate boils down to one question:
+ “How do we want success in the software industry to be
+ determined?”
+ </p>
+
+ <p>
+ Or, another way, who do we want to determine those who succeed and those
+ who fail in the software industry? Because there are various people who
+ can make this decision. We can have bureaucrats make the decision about
+ who wins and who fails, or we can let consumers make the decision about
+ who wins and who fails. If we want software to succeed because we want it
+ to succeed on its merits and be the best software that the public can
+ have, it's more likely we want a system that lets consumers and end-users
+ make the decision about which software is selected — not
+ bureaucrats.
+ </p>
+
+ <p>
+ Now, what does that have to do with patents? The larger you make a patent
+ system, the more you allow the patent system to impact software, and the
more
+ you're allowing success in the software industry to be determined by
+ patent-based bureaucrats, those who can take advantage of the
bureaucracy which
+ grants and resolves disputes regarding patent rights. It's a bureaucratic
+ competition, not one based on the decision of consumers. That means it's
less
+ likely for the merits to be determinative of what software succeeds.
+ </p>
+
+ <p>
+ We have to recognize that even without software patents, large
developers have
+ intrinsic advantages over small developers. Large developers have the
+ resources, large developers have the relationships, large developers
have the
+ distribution channels, large developers have the brand. So even without
+ software patents, large developers are still at an advantage —
they start
+ out at an advantage. Well, then, the next question to me is, “If
we have
+ software patents, does that increase the advantage of large developers or
+ decrease it?”, because the patent system could benefit small
developers
+ and therefore that could erode some of the naturally existing benefits
that
+ large corporations have.
+ </p>
+
+ <p>
+ I think that point's been belaboured already. We know that small
developers are
+ not benefited by a patent system, in fact, they are prejudiced by a
patent
+ system. So, enlarging a patent system to apply to software development
only
+ enlarges the disadvantage small developers have in competition. Again,
it comes
+ back: Who do we want to make the decision about which software developers
+ succeed, do we want consumers, based on merits and functionality and
price, or
+ bureaucrats, based on whom patents are granted to and who wins patent
+ infringement cases?
+ </p>
+
+ <p>
+ The other thing we need to recognize is whether or not the patent system
has a
+ preference for users of certain types of software. A patent system as we
have
+ in the United States benefits those under a software distribution scheme
which
+ allows them to charge royalties. This is because all software has to
deal with
+ the risk of infringing on patents. Patents don't discriminate between
+ open-source or freely licensed software and proprietary software: a
patent
+ covers certain technology, it doesn't matter how the software's
distributed.
+ But proprietary software is licensed with a fee so the cost of that risk
can be
+ passed on to the consumer without them recognizing it. They don't see
it, it's
+ baked into the price of the software they're buying and if you were to
ask a
+ consumer if they've bought insurance against being sued for patent
+ infringement, they would say they don't believe that have. But in fact
they
+ had, because if someone sues a user of Microsoft software, Microsoft has
built
+ in the cost of stepping in to defend them from that into the cost of the
+ license fee. On the other side, if you have royalty-free distributed
software
+ such as open-source or free software, you can't bake in the cost of that
risk
+ so it becomes more transparent. And this makes consumers or users think
that
+ open-source is in a worse position than proprietary software when it's
actually
+ not. It's just because the open-source distribution scheme does not allow
+ someone to sneak in the cost of that risk to make it opaque instead of
+ transparent. So the patent system not only prefers large developers over
small
+ developers, it also prefers users of proprietary software over
open-source
+ software.
+ </p>
+
+ <p>
+ If we come back to the initial question, which I think this is all
about, how
+ do we want success in the software market to be determined? Do we want
it to be
+ determined by these types of factors, or do we want it to be determined
by who
+ can get the best software at the best price?
+ </p>
+
+ <p>
+ Now, I think it's important to concede the point that people on the
other side
+ will make, which is, will a less-onerous patent system, or they would
call it a
+ 'less-beneficial' patent system, I call it less-onerous, will harm their
+ business, because people could copy them. Well, large businesses aren't
worried
+ about being copied. They really aren't. At least not by other large
businesses,
+ this is why they enter into cross-licenses all the time. If a large
company
+ really didn't want its software to be copied, why is it licensing its
patent
+ portfolio to every other big company in the world? Because it can't stop
them
+ from copying it once they enter into that agreement, so this argument
that ,
+ “Well, we're worried about people copying our software”, the
most
+ likely people to copy your software are other large businesses because
they
+ have the resources and the ability and the distribution channels and the
brand
+ and the relationships. Why are you letting them copy it? You must not be
that
+ worried about it.
+ </p>
+
+ <p>
+ And so the question is, then, does a patent system have a net-beneficial
effect
+ or a net-detrimental effect on software development? I think we've seen
already
+ it only decreases the ability for open-source or royalty-free license
software
+ to compete with proprietary software. In the end you have to ask, is less
+ competition beneficial for the software industry? I don't know what
Europeans
+ think about that, I think Europeans are very pro-competition and I know
us on
+ the other side of the Atlantic are very pro-competition as well, and so
the
+ answer is never less competition is better for consumers. And so I think
as we
+ bring the point home, if we had two seconds in an elevator to pitch this
idea
+ to someone, software patents have a net-negative effect on competition
in the
+ software industry. True, they may increase competition in some ways, but
the
+ net-effect is anti-competitive. And that's what putting the ability to
decide
+ success in the software industry in the hands of the patent office or in
hands
+ of the courts does. If you need examples, if people think that's just
rhetoric
+ or your opinion, just point to the United States. Microsoft is a very
+ successful software company, I don't think anyone would debate that.
They've
+ never had to sue anyone for patent infringement. So they claim they need
+ patents, but yet they've never had to use them. They cross-license them
and
+ that's where we wonder, 'If you're worried about people copying, then
why are
+ you cross-licensing them to people?'.
+ </p>
+
+ <p>
+ You know, the last point is, who else does a patent system benefit? If it
+ benefits large developers over small developers, is there anyone else? A
patent
+ system benefits non-developers. Do we really want a bureaucratic system
that
+ helps people who aren't adding anything to society? What I mean by
+ non-developers are trolls — which everyone here is familiar with
—
+ people who get a patent either by applying for it or acquiring it in
some asset
+ purchase and then use it to tax other developers, other distributors of a
+ product.
+ </p>
+
+ <p>
+ Do we really want a system which encourages people to not add products or
+ services to the market place but only detracts from the profits and
+ capabilities of those that do?
+ </p>
+
+ <hr />
+ <h4><a href="/philosophy/philosophy.html">Other Texts to Read</a></h4>
+ <hr />
+
+ <div class="copyright">
+
+ <p>
+ Return to the <a href="/home.html">GNU Project home page</a>.
+ </p>
+
+ <p>
+ Please send FSF & GNU inquiries to <a
+ href="mailto:address@hidden";><em>address@hidden</em></a>. There are
also <a
+ href="http://www.fsf.org/about/contact.html";>other ways to contact</a>
+ the FSF.
+ <br />
+ Please send broken links and other corrections (or suggestions) to
+
+ <a href="mailto:address@hidden";><em>address@hidden</em></a>.
+ </p>
+
+ <p>
+ Please see the
+ <a href="/server/standards/README.translations.html">Translations
+ README</a> for information on coordinating and submitting
+ translations of this article.
+ </p>
+
+ <p>
+ Copyright © 2006 Daniel B. Ravicher
+ <br />
+ Verbatim copying and distribution of this entire article is
+ permitted in any medium, provided this notice is preserved.
+ </p>
+
+ <p>
+ Updated:
+ <!-- timestamp start -->
+ $Date: 2006/06/16 20:32:48 $ $Author: johnsu01 $
+ <!-- timestamp end -->
+ </p>
+ </div>
+
+ </body>
+</html>
+
- www/philosophy patent-practice-panel.html,
John Sullivan <=