TechCrunch does its usual excellent job of highlighting a company. In this case one I consider unethical because it benefits itself while it erodes audience trust in the editorial independence of bloggers.

“Spamitorials” ?

Over the past week I have written a number of posts on patents and the Web 2.0 ecosystem.  These posts are not yet organized into a whole.  They were stimulated by what I considered disingenuous posturing and lobbying on IBM’s part, legislation that I regard as aimed at taking rights away from little guys and that is being supported by IBM and Microsoft. 

Eventually I hope to pull all my thoughts, and the thoughts of others–often better than mine–into a longer comprehensive paper.  But for now, here is a reference to my posts, and to particularly good natured, good humored, and thoughtful contributions from Brad Feld and Robert Cringely, both of which were helpful to my thinking.

Thanks much to both and all.  Best, Jim

Web 2.0 Open Technology Values,
Steal My Invention

Cringely on how “patent reform” promotes big company agendas and screws the small guys


Feld on intellectual property rights,

Intellectual property rights,
History of software patents in context,
Provisional patents as affordable 1-year protection  for the small guy,
IBM leads conspiracy to alter patent system in its favor,

Feld on IBM Takes Another Step to Change the Patent Process.

Consider this summary of Cringely’s in-depth article in regard to the current proposed change to patent law being championed by big companies and stealthily pushed through Congress:

The point of all this reform, it seems to me, is to make it harder
for small inventors to make a living. If they are all thieves, maybe
that’s as it should be. But what if they aren’t all thieves? What
if they actually invent most of the stuff we value? Then all of us
are being ill-served by this legislation.

Microsoft loves it, of course. Under the proposed law it is almost
impossible to get the treble damages that are at the core of the
contingency lawyer-client relationship. That, alone, drops
Microsoft’s liability by a factor of three, from around $20 billion
down to $7 billion or so from the dozens of patent infringement cases
currently pending against the company.

Yes, Microsoft may well be a prime target for frivolous patent
infringement suits, but Microsoft historically has also shown itself
to be a consistent and willful patent infringer.

In short, the bill is bad. It reflects the worst kind of special
interest law-making that hurts us all. And I mean REALLY hurts us
because it will only act to discourage inventors. Record and movie
companies beating-up on music and film pirates don’t save or cost
lives, but discouraging new medical inventions literally does cost
lives.

That ought to be as obvious as looking up a number in the phone book.

Cringely describes Microsoft’s interests clearly.  Equivalent interests can be exposed with regard to IBM and other large companies who are funding the “reform” effort.

Entrepreneurs need to be aware of a threat to their well-being that is being moved through Congress by Orrin Hatch and Patrick Leahy.  A bill has been introduced, at the behest of large technology companies, to limit patent rights.  These large companies are afraid of the “disruptive technologies” being spawned by entrepreneurs, and want large company “freedom of action” to clone these technologies and stomp out small pioneering firms.  Does this sound familiar from previous cases against Microsoft, IBM and others?  Of course.  So now these companies are fighting back, in the guise of “patent reform.”

Now Hatch is working on behalf of Microsoft and other large technology companies. Hatch and his clients seek to RADICALLY change patent law in order to lower big company liability in cases where they are found to have infringed on patents of others.

Microsoft, IBM and other large tech companies have launched a concerted public relations campaign to in support of the arguments in this bill.  The large company PR has largely succeeded in redefining “patent reform” to mean weakening patent laws and making them more favorable to large companies who infringe on small companies and individuals (who have been branded in this campaign as “trolls” because they do not have massive businesses like the large companies). 

Hatch also sums up the objections to his bill:

Let us be clear.  Hatch is not correct when he says “the high tech sector” is unified behind eliminating injunctive relief.  But he is correct that the big companies are mostly on this side–and probably contributing to his campaign and to his other causes–because weakening patent law will let large firms retain their power in a world of vastly many independent engineers and technology architects.

As
Robert Cringely has noted, passing this bill would lower Microsoft’s
potential exposure to damages by many billions of dollars.

PBS’ Robert Cringely has commented further on Hatch and Leahy’s bill in a post I have referred to before.  Cringely says it well:

>>Robert Cringely has written a most comprehensive description of recent developments in the perverted patent reform process being funded by Big Companies out to steal your inventions.  I hope I’m not being too blunt about it, but this is a serious matter. Consider the following article, which I have liberally excerpted.  Click on this line to read the entire, excellent article by Robert Cringely, and tp permalink to it.

August 18, 2005

Patently Absurd

Patent Reform Legislation in Congress Amounts to
Little More Than a “Get Out of Jail Free” Card for Microsoft

>By Robert X. Cringely

Late last month, shortly before the U.S. Congress shut down for its
summer recess, the Senate Judiciary Committee’s Intellectual Property
subcommittee held an unusual hearing — unusual because the only
committee member attending the hearing was the chairman, Orrin Hatch,
a Republican from Utah. Why would such a prestigious committee hold
a hearing in Washington attended by only one member? To slam through
some controversial legislation, of course. Senator Hatch was trying
to pass a new law “reforming” the U.S. patent system and apparently
felt it would all go much more smoothly without the presence of the
other committee members. And it might have gone smoothly, except
someone in the press noticed the unusual hearing and decided to
attend, essentially scotching the intended markup of the bill a week
later and passage just as an unwary Congress was heading home.

Lord save us from patent reform.

This is another in my occasional series of columns on “innovation,” a
term that — at least when used in the computer and software
industries — generally means “creative theft of ideas by big
companies.”

There are several forms of intellectual property protected by U.S.
law. Among these are patents, trademarks, and copyrights. The goal
of all three forms of protection is to encourage hard work through
the granting of some economic exclusivity, and thereby helping the
nation by growing the economy and through the good works made
possible by new inventions. Trademarks reduce ambiguity in marketing
and promotion. Copyrights protect artistic and intellectual
expression. And patents protect ideas. Of these three categories of
intellectual property, the ones recently subject to reform efforts
are copyrights and patents, and each of these seems to be headed in a
different direction, though for generally the same reason.

Copyright law is being tightened at the behest of big publishers and
especially big record and movie companies. The Digital Millennium
Copyright Act, for example, makes it a crime to defeat copy
protection of CDs and DVDs, thus helping to preserve the property
rights of these companies. At the end of some artistic productivity
chain, it is supposed to protect the rest of us, too, most notably by
encouraging the record and movie companies to make more records and
movies, which we will in turn be discouraged from copying illegally.

Patent reform works the other way. Where we are tightening
copyrights to help big companies, we are loosening patents, also to
help big companies. Certainly it isn’t to help you or me.

Do you feel helped by patent reform?

The bill at hand, which will take another shot at passage after the
current Congressional recess, is intended to discourage frivolous
patent lawsuits, which are reportedly ruining the days of big
companies all over America, thus denying the rest of us the fruits of
those patents — new stuff. That would be fine if most of our new
stuff came from big companies, but it doesn’t. Most patents aren’t
issued to big companies, but to smaller companies and to individual
inventors. Patent reform for the most part won’t help those groups
and will, in fact, hurt them.

If patent reform will hurt most of the people who receive patents,
why are we doing it?

Good question.

Patent reform appears to be based primarily on the idea that big
companies invent useful stuff that needs protection while smaller
companies and individual inventors use the patent system to suck
revenue out of big companies through frivolous patents and frivolous
lawsuits. Of course, it isn’t at all clear that this assumption is
correct.

The primary principles of patent reform are switching the U.S. system
from “first to invent” to “first to file” by replacing legal
challenges to patents with a more administrative challenge process,
and by practically eliminating injunctions through which a patent
holder forces an infringer to stop using his intellectual property.

Much of the rest of the world already uses “first to file” patent
systems. Of course, much of the rest of the world also ignores or
gleefully violates patent law. “First to file” gives the advantage
to any organization that has a good administrative system in place.
Absent-minded inventors lose in this system, which also encourages
patenting anything and everything just in case. We can see this in
recent Microsoft patents, for example, like 20050108349 — “Business
inquiries and operations using messaging service” — which seems to
cover looking up a number in the telephone directory. Does this
qualify as “innovation?”

“First to file” is supposed to be good for you and me because it
reduces frivolous lawsuits by people who may think they actually
invented looking up numbers in the phone book before Microsoft
invented it. But, hey, isn’t a patent supposed to be “non-obvious,”
which would make looking up numbers in the phone book unpatentable?

It’s just my opinion, but “first to file” looks like a good way to
screw small inventors, of which I know quite a few.

Moving to an administrative challenge system within the patent
office, rather than just filing a law suit in court, is supposed to
both make patents better and cheaper. It is supposed to make them
better because expensive lawyers are eliminated from the process,
thus allowing more challenges to be filed and improving the overall
quality of issued patents. There are only two problems with this
theory, and those are the false ideas that lawyers will be eliminated,
and that money will be saved.

Big companies with patent departments will continue to staff those
departments with lawyers, whether they are called that or not.
Little companies and individual inventors without patent departments
tend to be represented by lawyers who work on contingency — who
accept the financial risk of pursuing the case in return for a share
of any award the inventor gets in compensation for the infringement.
While there are some lawyers who are the patent equivalents of
ambulance chasers, most lawyers won’t take patent cases they aren’t
pretty darned sure they can win, which would seem to not be frivolous
cases at all.

So moving to an administrative challenge system eliminates lawyers,
yes, but only for small inventors.

Finally there is the elimination of injunctions except under extreme
circumstances. I find this part of the bill especially interesting
because it seems to effectively allow infringement under almost any
circumstance, reducing what is supposed to be a crime into more of a
forced license — forced on the patent holder. If a company
infringes my patent and I can’t get an injunction prohibiting them
from using my intellectual property, that means anyone can use any
patented technology, and all that’s left to be worked out is the
license fee.

I don’t want to be too petty about this, but what if I, as the
inventor, simply don’t like you, the infringer? What if I fear
you’ll be using my very peaceful invention to make weapons of mass
destruction? Can’t I stop you from using my property? Under the
proposed law, I can only do so if your infringement will effectively
put me out of business.

Under this bill, that which doesn’t kill us continues to annoy.

The point of all this reform, it seems to me, is to make it harder
for small inventors to make a living. If they are all thieves, maybe
that’s as it should be. But what if they aren’t all thieves? What
if they actually invent most of the stuff we value? Then all of us
are being ill-served by this legislation.

Microsoft loves it, of course. Under the proposed law it is almost
impossible to get the treble damages that are at the core of the
contingency lawyer-client relationship. That, alone, drops
Microsoft’s liability by a factor of three, from around $20 billion
down to $7 billion or so from the dozens of patent infringement cases
currently pending against the company.

Yes, Microsoft may well be a prime target for frivolous patent
infringement suits, but Microsoft historically has also shown itself
to be a consistent and willful patent infringer.

In short, the bill is bad. It reflects the worst kind of special
interest law-making that hurts us all. And I mean REALLY hurts us
because it will only act to discourage inventors. Record and movie
companies beating-up on music and film pirates don’t save or cost
lives, but discouraging new medical inventions literally does cost
lives.

That ought to be as obvious as looking up a number in the phone book.

Is the interest of Big Companies in “patent reform” just a little like the interest of
pedofiles in “child welfare?”
Just wondering…

Perverted patent reform?

The
cynic says:  Let’s consider what big IT companies such as IBM,
Microsoft, and Hewlett-Packard find attractive in “patent reform:”

1.  Big companies have historically stolen lots inventions, and seldom been caught.

We all know the famous stories, the rare times when companies did get caught, and individuals and small companies either prevailed or at least were heard. 

But what of the thousands of times when the theft was unnoticed, or could not be proved, or where the innovator could not afford to defend his or her claim?

2.  Big companies want to continue to steal ideas at will, and they have a problem with two megatrends: 

A. Most of the innovation in the world of information technology now happens in the world at large, not in their private labs. They do not want to have to license this world-spawned technology.  Indeed, they don’t want to have to keep systematically informed of it.  (Hey, IBM, subscribe to TechCrunch!)

B.  Big companies like IBM now and in the future plan to make most of their money as consultants and systems integrators.  Technology is a “cost of goods” to them.  Technology innovation is a cost of goods to them.  They would like to make the cost of technology as low as possible. They would like to make the cost of innovation, the cost of inventions, and the cost of licensing patents as small as possible.

3.  Big companies have come up with a solution that allows them to continue to steal inventions and deal with the megatrends arrayed against them:

Reduce the protection afforded to small companies and individual inventors under the patent law. 

A.  Make it harder for small inventors to get patents by attacking the patent office for “lack of quality” specifically in IT and software patents.  Note:  Under the “old” “low quality” system IBM already has 32,000 issued patents in its name, and 45,000 it controls in total including patents acquired.  IBM files about 3000 new patents per year, as does Microsoft.

B.  Reduce the damages inventors can collect, thus reducing big company direct exposure to amounts that big companies can easily afford, and reducing the willingness of law firms to take on claims of small inventors because of the limited potential returns on the investment in a lawsuit.

C. Fund–under the table–”patent busting” activities on patents that are seen to potentially stand in the way of large company systems integration business.  In this way IBM and other large firms outsource legal attempts to invalidate others’ patents.  IBM and others are then able to use non-profit talent, they are able to join with other firms in alliances that would otherwise be illegal collusions under anti-trust law, and IBM can “donate” tax free.

There is a good deal of talk on blogs about what Web 2.0 is, and what Enterprise 2.0 is.  I would like to suggest that the Web 2.0 community might find it valuable to consider what our values are with respect to intellectua property rights, in a situation where millions of entrepreneurs are working–and a few companies are aquiring, integrating, and serving ads over the whole.

In Web 2.0 because of the content-centric and service-centric nature of the ecosystem, the conversation often revolves around copyright.  I think it is important that it also address technology inventions and patents.

I think it is also important to note that, as far as promoting innovation, patent and copyright may work in an opposite manner.  When big companies steal content, their theft is obvious and remedies come fast.  When big companies steal technoloy, their theft is hidden deep in the bowels of a platform or service, the theft is often invisible, and discovery, proof of infringement and remedies come slow.

On the other hand, it is easy for millions of consumers to use the web to steal  content from big media companies.  It is hard for millions of consumers to steal technology from large companies.

Big companies know this difference, and this is why they are investing hundreds of millions in lobbying to tighten the copyright laws, and loosen the patent laws.  See note #1 at bottom.

Unfortunately, the “free culture” movement has not caught up with the distinction between content and technology, nor that between copyright and patent.  Thus many folks that are “open” are being sucked by big companies seeking to weaken patent law.  What the open folks don’t realise is that current patent law IS open. 

I have written on this in a number of other posts, and continue to struggle to clarify what is going on, and what makes sense for the open side of the argument–which is my side, which I hope is obvious.

Here, for what its worth, is my attempt at a statement of  open, community-oriented values, that expresses how I see the current US patent system as supporting these values.  This list is a work in progress and any comments will be appreciated.  Your thoughts are best delivered on your blog for maximum transparency, needless to say.  Have at it.

We want to promote innovation and innovators. 

We respect the true inventors–whether of steam engines or of  software–who take on a hard task and do it well.

We
believe that inventors own the fruits of their own labors,
whether those fruits are the result of making physical machines or making logical machines in software and hardward.

We believe in property rights.  We recognize that
people have many different options in terms of their property:  They
can let others use it, they can give it away, they can lease or sell
it, and they can hold on to it.

The legal system has evolved
to maintain workable markets for particular types of property that have
proven subject to theft, arguments over ownership, and so on:  cars
(title, license), realestate (special courts, title, title insurance),
investment securities (Securities and Exchange Commission, insider
trading prohibitions, Sarbanes, etc.), and intellectual property
(patent, trademarke, and copyright). Each of these sorts of propery are
different in the “market failures” that have been experienced over
time, and the protections that have evolved. 

The intellectual
property market needs to facilitate owners accomplishing a wide range
of market outcomes, including giving away or donating part or all of
their property.  Creative Commons provides an excellent method for
donating to others the non-commercial and the commercial property
rights to a particular work.  BTW this entire blog can be licensed
through Creative Commons. 

If folks want to license their work
to others and get paid for it, that is fine as well.  It is good for
society when creative people can quit their day jobs and labor on their
deepest contributions.  One way to do this is to start a lab and
license your inventions.  The central problem in running a lab is how
not to get ripped off when you disclose your inventions to prospective
buyers.  The best protection system yet invented is a
govenment-certified property right.  But in order to not clog up the
innovation landscape, those rights expire after a limited period.

The current US patent system has been specifically created and improved over the decades to help make a workable market for innovation. 

The
biggest problem in the intellectual property markets, historically, has
been theft of inventions.  There is a long history of theft by big economic bullies
from small companies and independent inventors.  Big companies steal lots of ideas, and seldom get caught. 

The patent
system helps combat theft by granting a publicly registered property
right–like land title.  This registered right provides a basis for
preventing the theft of ideas, by helping inventors prove their
ownership in court.

The patent system recognizes the need for
open disclosure in order to promote innovation across the community of
innovators. The US patent system is historically the first open source
movement.   It forces inventors to disclose of the essence of an
invention so that others can learn from that invention and try to go it
one better.

The patent system recognizes the need for
intellectual property rights to expire, in order to clear the decks for
new inventions–including those that use old ideas in new ways.  Thus
the intellectual property right is unique in that it is designed to
expire.  Real estate title does not expire (though it can be taken by
the state in eminent domain cases), and car titles do not expire (cars,
unfortunately, do expire).  Patents expire 20 years after the
underlying property right was first claimed. 

The effective
term of patent has been held the same or lessened, as US law now allows
20 years after claim, where it used to allow 17 years after the patent
issued.  In many cases it take longer than three years after claim–the
difference from the old law to the new–for a patent to issue. 
[Unfortunately, the copyright term has now been made almost
non-expiring, due to lobbying by Disney and others.  There is no
similar effort underway in regard to patents, fortunately.]

————————————————————-
Note 1:  Robert Cringely on how copyright and patent lobbying by big companies is pushing in opposite directions:

Copyright law is being tightened at the behest of big publishers and
especially big record and movie companies. The Digital Millennium
Copyright Act, for example, makes it a crime to defeat copy
protection of CDs and DVDs, thus helping to preserve the property
rights of these companies. At the end of some artistic productivity
chain, it is supposed to protect the rest of us, too, most notably by
encouraging the record and movie companies to make more records and
movies, which we will in turn be discouraged from copying illegally.

Patent reform works the other way. Where we are tightening
copyrights to help big companies, we are loosening patents, also to
help big companies. Certainly it isn’t to help you or me.

Do you feel helped by patent reform?

Well, you have to love the blogosphere. I wrote a bunch of pieces on patents and patenting last Wednesday, checked my refer logs the next day, and figured no one picked up the posts.

Brad Feld weighs in

Then over the weekend I managed to catch up on my reading and, lo and behold, Brad Feld–who I very much like and admire–and who I had (mildly, in intent) tweaked in the piece–Brad posted a response thoughtful and good natured and humorous.  I.e. the best kind.  Thanks Brad!

Here is what I think is the essence of Brad’s message, quoting Brad from the post:

Agreement on values and goals

Brad and I seem to agree that the patent system reflects our values (see below). 

I agree with Brad that software patents need to meet a high test of innovation.  I agree that during historical period that software patents have been recognized, it has been a problem that stupid software patents have been issued by the patent office.

What I want to do is improve the system to make it hard to get stupid software patents issued, and easier for true innovators to get patents and protect their rights.

I don’t think that the right answer is to abolish software patents.  I think that this will lead to big companies becoming big bullies. My experience is that big companies already steal lots of ideas from small companies, independent inventors, and the open source community.  Abolishing the patent process will let theft run wild.  And/or it will lead to secrecy among inventors.  Neither result is good.

Let us continue to improve the software patenting process.  My vision includes creating some new private institutions to support independent inventors of software.

Finally, Let us also disclose our sources of funding for patent reform. I am very suspicious of IBM, Microsoft, and other large firms who currently–this is fact–are the major funders of the “patent reform” movement.  The fox is reforming the hen house.  If you look at the big funders of, say, the EFF patent reform activities, what you will find, undisclosed unless you ask, is IBM money.  You be the judge.  Good or bad? I think, probably, bad. I love the “free culture” movement, but I think it is becoming currupted by its big company funders.  I think this is a BIG problem that no one is focused on in the blog community.

Context thread:

Moore on Web 2.0 Open Technology Values,
Steal My Invention

Cringely on how “patent reform” promotes big company agendas and screws the small guys


Feld on intellectual property rights,

Moore on intellectual property rights,
History of software patents in context,
Provisional patents as affordable 1-year protection  for the small guy,
IBM leads conspiracy to alter patent system in its favor,

Feld on IBM Takes Another Step to Change the Patent Process.

From the US Patent and Trademark Office website, General Information Concerning Patents

What Is a Patent?

A patent for an invention is the grant of a property right to the inventor,
issued by the United States Patent and Trademark Office. Generally, the
term of a new patent is 20 years from the date on which the application
for the patent was filed in the United States or, in special cases, from
the date an earlier related application was filed, subject to the payment
of maintenance fees. U.S. patent grants are effective only within the
United States, U.S. territories, and U.S. possessions.

Dave Winer says:

I seriously think my country has lost its mind. We’re getting the
best wakeup call possible with the torture bill. We’re getting the
warning, if we re-elect the Republican Congress, we deserve what we
get.

width=”108″>However,
it’s not up to me, it’s up to the Republicans. That’s the basic truth.
If you love the Constitution, if you love this country, how can you
support what Congress just did. I struggle to find something to say,
but then there really is nothing left. If the Republican voters can’t
figure this one out, we’re totally screwed.

Here is my response to Dave just now:

First, and perhaps most important, your focus on Republicans makes wise sense.  We need to gain allies in the Republicans. The Republicans hold the keys in this current political environment. And the responsibility, by the way.

Dave, this post about the country is my favorite in a long time–a very important post which deserves wide reading.  Pamphleteering in the best sense.  What more can I say.  I am sad.  Period. 

The “war on terrorism” is completely manufactured.  As someone said recently, terrrorism is not an opponent, it is a tactic.  The way to deal with it is through police work and spying. 

Our nation is at war, however.  Ask the troops, the families, the survivors, the defense contractors.  Neil Young says it well, with the title to his album “Songs in a Time of War.”  This is our era.  But, many ask, who is the war against, and why are we fighting it?

There is no opponent worthy of the name.  There is no threat worthy of the dying.  Bush, with the support of congress, has unleashed a real war against sham enemies.

The answer is that we are fighting a war in order that the President and his allies can benefit from what are usually the secondary benefits of a war–silencing of dissent, cowing of the opposing party, consolidation of executive power, suspension of individual rights, and war profiteering by friends in business.

What is so frightening is how effective Bush and his friends have been at gaining these benefits.  Perhaps they can focus almost exclusively on maximizing these benefits, given that there is no real opponent in the war per se.

One of the interesting things to consider is the difference between wars with real, credible opponents–and wars with sham opponents.  The Vietnamese as a threat to the United States?  The Iraqies as a threat to the “American Homeland”?  The Cubans? 

What are we thinking…