Why patent consortia are a good thing

Why patent consortia are a good thing

Summary: When the subject of patents and cross-patent consortia comes up everyone is a troll. They have to be because courts do not recognize the legal requirements of open source.


When the subject of patents and cross-patent consortia comes up everyone is a troll.

Pamela Jones is an IBM troll. Florian Mueller is a Microsoft troll. It must be true because their enemies say so.

IBM and Microsoft both have patent consortia. IBM's is organized as the Open Invention Network. Microsoft's is a contract, the one first signed by Novell and since by many others.

Both are important to readers of this blog because they both claim to protect Linux. IBM acted after the SCO case was filed. Microsoft acted after it made a corporate decision to enter the open source arena.

The purpose of both is also the same.

To minimize patent risk among those inside the consortia. Since both are open to new members (OIN now has 36 members) the costs of entry are seen as modest, a great value compared with going into a gun fight with only a pocket knife.

Neither is an absolute assurance you won't find yourself paying big bucks to patent attorneys. IBM looks set to spend many Euros on them in the coming months. That's the risk of a monopoly. Patents, like copyright, were seen as monopolies by the Founders.

Personally I find the whole thing wasteful. That's why I recently called software patents the John Roberts tax. If courts were clear -- if it were not possible to patent math or how you do business as the Founders intended -- none of this would be necessary.

Mueller calls OIN a "patent trap" and Groklaw's acolytes have their own names for Mueller, most of which can't be repeated on a family blog.

I think both sides are missing the point.

Absent legal clarity, or legislative action, this is the situation open source has to live with. It is a tax on innovation, which the Constitution sought to avoid. Of course, the Constitution also sought to avoid the direct election of Senators.

In his book The Most Powerful Idea in the World (above), William Rosen calls the ownership of ideas one of two key ingredients in bringing about the Industrial Revolution. The other, he writes, was the organization of workers into enterprises.

Open source is a shared enterprise. Its purpose is to organize really big ideas, ideas so big they can't advance under the control of any one company, no matter how big.

Today's software is something like the Egyptian pyramids we see today, or Machu Picchu as tourists see it today. That's not what its builders saw. That's what was underneath. It's a foundation.

Critics of open source like to talk about how it doesn't innovate. To some extent that's true. But that's not the point, my friend.

Without a sound foundation, software with billions of lines of code in it could never be written, or delivered bug-free at a profit to the world. It's an organizing principle that works, within the framework of a free society.

It deserves more respect from the legal profession. And perhaps from historians.

Topics: IBM, Legal, Microsoft, Open Source, Patents

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  • RE: Why patent consortia are a good thing

    "When the subject of patents and cross-patent consortia comes up everyone is a troll."

    I dunno if I'd label businesses that actually make products as "trolls," since they may just be defending their products.

    It's the businesses where the patents themselves are considered the "products" that I think are the real trolls.

    IMO there should really be a requirement that you actually [i]make the product listed in the patent[/i] before you can defend it in court.
    • RE: Why patent consortia are a good thing

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  • Claims vs methods in patents

    One thing I've noticed (and probably anyone else who has bothered to read one) is that patents are often written in broad terms so that any method used to reach a claim is covered. I always thought that patents were intended to cover one specific method for one particular claim.

    A recent court case, Ariad v Lilly concerned a patent on a method for reducing genetic expression. The patent claimed that "any compound" that reduced this particular genetic expression was covered by the patent. The court touched upon the point when they said that the Ariad patent was invalid for trying to cover "any compound" that could reduce genetic expression.

    In so many words they said that patents cannot be designed to preclude innovation in the future, which is precisely the problem with the way that patents are prosecuted and enforced. Everyone who prosecutes a patent nowadays is trying to preclude innovation in one particular area of business.

    As I was saying earlier, the claims in the patent attempt to cover all methods that reach the claims. That would be a patent on an idea, not an invention. A patent on a software invention could only reach to one particular method for reaching a claim.

    So for a software patent, one particular method would have to include code. Why? The court in Ariad also pointed out that the description of the invention in the patent must disclose enough information to allow one ordinarily skilled in the art, to recreate the invention without unnecessary experimentation.

    This really gets back to whether or not you're patenting an idea or an invention. That is the question we should be asking.
  • Patents are a stupid, until

    the idea you want to patent is your own.

    Then suddenlly they're good, as it gets you the money you feel you deserve for your idea.
    John Zern
    • The trouble with patents

      @John Zern I cover healthcare here as well as open source. Healthcare patents are usually straightforward. You can see the device and make one better, then get a new patent. You patent a particular chemical formulation, it's unitary.

      Not true with tech. That's the problem. Someone patented the idea of auctions! You can't really patent math. And the courts have held that it's the expression of the math, the work it does, that renders it patentable, not the math itself.

      But what does that mean? The courts won't tell us. Until they do we have people writing overly-broad patent applications and the patent office granting patents to nonsense.

      This is what I criticize the Roberts court for, refusing to do their job and clarify the meaning of the law in terms of the Constitution.

      My own view is you go back to the document. Article I, Section 8 gives Congress the right to offer these rights for limited times for the purpose of encouraging new stuff.

      In the end, all "intellectual property" becomes public property. It's not meant to be an eternal grant. And the purpose of copyright and patents is to encourage the creation of more stuff.

      How does it encourage the creation of more stuff to patent basic concepts, or to have copyright for Laurel & Hardy, both of whom have been dead for 50 years? When the beneficiaries become estates and corporations, you're not encouraging the creation of more stuff, IMHO.

      eor (end of rant)
  • RE: Why patent consortia are a good thing

    In order to be really useful, Patent consortia must be fair. Microsoft's is not fair. Nobody could think that Microsoft's and Novell's position's are equivalent. ON the other hand, the patent pool which was forced upon the Wright brothers during the first world war was a good example of a successful consortia. See for example: http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war
  • RE: Why patent consortia are a good thing

    The "patent troll" is a myth largely propagated mainly by large corporations angered after having to pay up for infringing others' IP rights. Apparently, trolling is in the eye of the beholder. To my mind, deliberate infringement is worse than asserting a valid right.