Punishment

William H. Page and Seldon J. Childers cite my podcast interview with Jeremy Allison in an article for the Northwestern University Law Review. part 1 part 2.

"The Samba license formed under the order in the European Microsoft case, in contrast, is both significant and perilous for global antitrust policy. It provides critical protocols and documentation to Microsoft’s most important rival in the server market, a rival, moreover, whose development methods are focused on the analysis of those very protocols."

True, but the license is, as mentioned in the article, the result of a settlement with the European Commission. It's "perilous" to perpetrators, not to the software business in general. If Steve Ballmer got caught selling crack, and ended up with community service under a plea bargain, yes, he could end up having to clean up in front of the beer store.

You can't have it both ways: if "Intellectual Property" should be treated like actual property, then you put it at risk when you use it in a crime. The European Commission isn't picking on a US-based company for no reason here. In fact, the Commission generally advocates for expansions of exclusive rights in information that tend to benefit US-based companies at the expense of Europe. And in this case, the Commission didn't even limit Microsoft's use of the patent system. It only limited the company's ability to make vague anticompetitive threats based on unspecified parts of a large patent portfolio, and handed over some protocol information that Samba was in the process of working out anyway.

A common-sense patent regime would limit the tools available to future software monopolists, and might make the next antitrust action unnecessary.

Meanwhile, this Monday morning, some Red Hat patent lawyer is looking at this useful weekend hack from Dave Jones and considering filing for a "defensive" patent, one that has no bearing on Dave's incentive to come up with the next kernel tweak, but that might help deter troll raids or patent Ragnarok. Don't people have better things to do?

Tim Lee links back to my earlier piece on GPL/patent gamesmanship. This paper on patent invalidation from Joseph Scott Miller makes an essential point on real-world patent cases: if you're defending a patent suit from a troll, and you have the necessary prior art to invalidate the patent, the best move for you is not to fight it out and finish the patent off, unless you're just trying to impress Matt Asay. Instead, you pay the troll a token, undisclosed amount for a license and make the patent a nusiance to your competitors. This is why Trend Micro can brag that its weak virus scanning patent hasn't lost in court.

Defendants are usually better off becoming a troll's allies, but should the troll accept the offer? Depends on the strength of the patent and the projected revenue stream from the victim. In the case of an open source defendant, you can treat the patent as weaker, since it's more likely to attract outside research help. And the projected revenue stream is smaller, since an open source defendant is limited in its ability to raise prices to pay an ongoing license fee. The open source vendor's customers aren't locked in enough to pay more for no benefit.

Open Invention Network is halfway to the convergence of a troll company and a GPL patent pool. But because the investors are actually in the software business, OIN can't go as whole hog with actually making money as the true bastard spawn of troll and open source pool could. Buy up some patents, license them to the relevant open source projects to take them and their users out of the picture, and target the proprietary infringers.

In the US, we're stuck with a cheap dollar and high oil prices, which means that the Sovereign Wealth Funds of oil-producing countries are in an ideal position to accumulate US paper assets such as software patents. We're closer to Europe's situation than it might appear. When you're paying $7 a gallon for gas, and the money goes to snap up patent portfolios that restrict your work, defenders of Qatari troll companies are going to look pretty silly, whether or not the trolls strike a bargain with the open source types.

Syndicated 2008-06-24 19:17:30 from dmarti's blog