There are some signals from the BSA and the PFF Center for the Study of Intellectual Property that even in their opinion there might be possibly something like a problem with software patents in America.
A recent BSA position paper "Intellectual Property in the 21st Century" is critical of patent holders who produce nothing but lawsuits. They see a problem with that:
(page 13 of the paper)"But the increased reliance of patents has also resulted
in a number of practices that can cause disruptions. First, some people have accumulated patent portfolios not to further innovation and development of new products, but to turn these portfolios into profit centers. These individuals have used their patents to compel others to license technologies from them, or to take licenses in their patents, under threat of litigation. In some instances, these patents are used for strictly tactical purposes, never intended for commercialization of inventions. Finally, the threat of litigation has caused some technology companies to make decisions based on the cost of such litigation, rather than the value of the underlying technology."
That is a radical anti-patent position. Under current worldwide patent law standards, there is no requirement to use or even be able to use patented technology yourself. You can have ideas and have them protected without owning production facilities to actually use them yourself.
I don’t agree with that position. If you think patents are a good idea in the first place (something I am agnostic about in general and highly critical of for software), then this option should be open for everybody willing to pay the entrance fee at the patent office. The opposite position would mean that patents are only for the big players. That might suit the members of the BSA, but I don’t think it would be a fair system.
And Patrick Ross at the PFF Center for the Study of Intellectual Property weblog also writes something in this direction.
"I like the phrase "patent terrorist," because these companies do seek to cause terror. A closer analogy might be a mafia shakedown artist, however, because terrorists tend to cause terror for its own sake, whereas an extortionist has a price at which they'll ensure you no further trouble. Still, the "patent terrorist" phrase has been around a few years now, and seems to be gaining a foothold in the general lexicon, which will make life difficult for Reuters reporters. They'll have to refer to "alleged patent terrorists."
Again, I don’t agree with that. “Terrorist” is a word definitely not suited to the situation. If someone threatens a patent lawsuit without producing anything himself, that might be extortion or fraud under certain circumstances. For example, Ian Clarke is talking about "extortion" in the context of a recent software patent claim, and in a German case of a “patent” on the use of car license plate codes (like “M” for Munich) as part of domain names, the patent holder was faced with criminal fraud charges. But terrorism is something very different.
If you want colorful but misleading rhetoric for abuses and overextension of the patent system, words like “slave trader” are perfectly well suited to the occasion.
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Posted by Karl-Friedrich Lenz at January 19, 2005 09:40 PM | TrackBack