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11/24/2004 Archived Entry: "the coming patent war"

The preliminary skirmishes are over, and the war of the 21st Century has now been openly declared. No, I'm not referring to Iraq, or Iran, or Islam vs. the West. I'm referring to the Intellectual Property War which is about to erupt, and the battleground is a land known as Patents.

Some of the luminaries of the open-source community have been warning for years that the true threat to the open source movement is not copyright, but patents. The SCO vs. Linux legal battle has certainly shown copyright law to be a feeble weapon, and I suspect it may be the last major attempt to use copyright law to block competition in computer software.

That's why you now hear the Microsoft FUD* factory spreading the message about patents: "use Linux and you'll be sued." (Never mind that no patent infringement case has yet been brought against Linux.)

And that's why you see Microsoft scrambling to enlarge its patent portfolio, with some ludicrous results. In the eyes of a megacorporation, patents are not a way to protect innovation. Patents are a weapon. An offensive weapon that can be used to crush upstarts; or a defensive weapon to use against other corporations' patent attacks. (Often the only defense against a patent infringement suit is a counter-suit over a different patent. Having a thick portfolio of patents can then give you the option to settle the suits by cross-licensing, as Microsoft recently did with Sun Microsystems.)

Certainly patents are more sweeping than copyrights, since they prohibit even independent development and totally original expression of a patented "idea." Lose a copyright case and you have to rewrite your code. Lose a patent case and you may need to leave the market. Furthermore, the costs of defending a patent suit can destroy the most meritorious of claims, and bankrupt the most meritorious of claimants; even more than many other lawsuits, patent cases are won by those with the deepest pockets.

Let me make my position clear: I'm opposed to patents in any form. They're flawed for several reasons. I once explained in Objectivist terms that they're subjective, irrational, and "anti-life" (anti individual rights). Certainly, by denying the possibility of independent invention, they are blind to history, and they are a license to steal the intellectual work of inventors and innovators. Patents do not protect "intellectual property." They are a state-granted monopoly.

Libertarians recognize that monopolies don't survive without state protection. History is rife with examples of business interests who have used government "pull" to block or destroy their competition. Patents are no different. As always, ask cui bono? (who benefits?). Follow the money. Who is lobbying most strongly for enlarged patent laws? Not independent inventors or small business; instead, it's Microsoft, the pharmaceutical industry, and similar behemoths.

Partly thanks to them, the travesty of patent law has gone the furthest in the U.S., where software and even "business methods" can be patented. (Remember Amazon's notorious patent for "one-click" shopping. Do you really think no one else would have invented that independently?)

Even The Economist -- normally a bastion of conservative thought and business interests -- says the patent system is broken:

In recent years, the scope of patents has broadened to encompass new technologies, as well as software, and in some instances business methods. Meanwhile, the legal power of patents, once awarded, has increased, and they are more zealously sought. This, combined with an alleged decline in the quality of patents -- that is, how accurate their claims are and whether they are truly novel or non-obvious -- is deeply troubling, especially as, once awarded, a patent is hard to revoke. (November 13, 2004)

The U.S. may be beyond redemption where intellectual property law is concerned; Congress is so thoroughly clutched by corporate IP interests that they've even tried to ban fast-forwarding through the movies you purchase.

The current battleground appears to be the European Union. After a long campaign by open-source enthusiasts and local business interests, the EU Parliament dropped the most egregious aspects of its proposed new Intellectual Property law -- only to see them unilaterally re-instated by the EU Council (whose president, coincidentally, came from a country with a strong Microsoft presence). This battle is not yet over. Other EU nations are seeing the folly of software patents, and how they will kill rather than promote their software industries. Watch the EU, and hope. If they can resist the pressure to conform to US patent law, then maybe the rest of the world can do likewise.

In the U.S., I fear that there will be no rolling back of the patent laws. But it's possible to block further expansion of the IP laws, and to block the U.S. Government's efforts to export its patent regime to the rest of the world.

Some Libertarians think, in the images of Rand's Atlas Shrugged, that IP law is a battle of the noble Hank Rearden vs. his inferiors. Really, it's the battle of Orren Boyle -- in the form of Microsoft, the MPAA, the RIAA, and the pharmaceutical industry (among others) -- to gain legislated privileges and use the state to squash competitors. It's state capitalism vs. the individual. I know where I stand.


* FUD: Fear, Uncertainty, and Doubt. A popular marketing tool for those whose products can't sell on merit.

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