Friday night, I tweeted a link
to a Guardian
article stating that app
developers were withdrawing apps from Apple's app store and
Google's Android market (and presumably also Amazon's app store),
because they feared becoming victims of a patent trolling lawsuit.
That tweet elicited some interesting responses that I'd like to discuss.
The insurance solution?
One option might be to rely on the insurance industry to solve the
problem. "Isn't this what insurance is supposed to be for? Couldn't all these
developers set up a fund for their common defense?" wrote @qckbrnfx. An
interesting idea, and one I've considered. But that's a cure that
seems worse than the disease. First, it's not likely to be a cure.
How many insurance companies actually defend their clients against an
unreasonable lawsuit? They typically don't. They settle out of court and your insurance premium goes up.
If you look at medical malpractice insurance, where unfounded
malpractice claims are the equivalent to trolling, I
would bet that the willingness of insurance companies to
settle out of court increases trolling. An
insurance solution to the problem of trolling would be, effectively, a
tax on the software developers. And we would soon be in a situation
where insurance companies were specifying who could develop software
(after a couple of malpractice cases, a doctor becomes uninsurable, and
he's effectively out of the business, regardless of the merits of
those cases), what software they could develop, and so on. Percy
Shelley once said
that "poets
are the unacknowledged legislators of the world." But my more
cynical variation is that the insurance companies are the
world's unacknowledged legislators. I don't want to see the software
industry dancing to the insurance industry's tune. Some fear big
government. I fear big insurance much more.
Fighting back?
There's a variant of the insurance solution that I like:
@patentbuzz said: "Developers need to unite and crowdfund re-exam of obnoxious troll patents. Teach them a lesson." This isn't "insurance" in the classic risk-spreading sense: this is going on the offensive,
and pooling funds to defend against trolling. I do not think it would
take a lot of effort to make trolling (at least, the sort of low-level
trolling that we're looking at here) unprofitable, and as soon
as it becomes unprofitable, it will stop. Small-time app developers
can't afford lawyers, which is precisely why trolling is so
dangerous. But here's the secret: most patent trolls can't afford lawyers,
either. They can afford enough lawyering to write a few cease and
desist letters, and to settle out of court, but their funds would be
exhausted fairly quickly if even a small percentage of their victims
tried to fight back.
This is precisely where the big players need to get into the game.
Apple has tried to give their app developers some legal cover, but
as far as I know, they have not stepped in to pay for anyone's
defense. Neither has Google. It's time for Apple and Google to step
up to the plate. I am willing to bet that, if Apple or Google set up
a defense fund, trolling would stop really quickly.
Blocking sale of patents?
A large part of the patent problem is that patents are transferable.
@_philjohn asks "Do you think changing law to prevent transfer of patents could reduce the patent troll problem?" On one level, this is an
attractive solution. But I'm wary: not about patent reform in itself
(which is absolutely necessary), but because I've worked for a startup
that went out of business. They had a small intellectual property
portfolio, and the
sale of that portfolio paid for my (substantial) unused vacation time.
That's not how things are supposed to happen, but when startups go out
of business, they don't always shut down nicely. It's worth asking
what the cost would be if patents and other kinds of
intellectual property were non-transferable. Would venture capitalists be less likely to invest, would startups fail sooner, if it were impossible to sell intellectual
property assets? I suspect not, but it isn't a simple question.
A call to action
Patent and copyright law in the U.S. derives from the Constitution, and it's
for a specific purpose:
"To promote the progress of science and useful arts" (Article I,
section 8). If app developers are being driven out of the U.S. market
by patent controlling, patent law is failing in its constitutional
goal; indeed, it's forcing "science and the useful arts" to take place
elsewhere. That's a problem that needs to be addressed, particularly
at a time when the software industry is one of the
few thriving areas of the U.S. economy, and when
startups (and in my book, that includes independent developers)
drive most of the potential for job growth in the economy.
I don't see any relief coming from the patent system as
it currently exists. The bigger question is whether
software should be patentable at all. As Nat Torkington (@gnat)
has reported, New Zealand's Parliament has a bill before it that will ban software patents, despite the lobbying of
software giants in the U.S. and elsewhere. Still, at this point,
significant changes to U.S. patent law belong in the realm of pleasant
fantasy. Much as I would like to see it happen, I can't imagine
Congress standing up to an onslaught of lobbyists paid by some of the
largest corporations in the U.S.
One dimension of the problem is relatively simple: too
many patent applications, too few patent office staff reviewing those
applications, and not enough technical expertise on that staff to
evaluate the applications properly. It doesn't help that patents are
typically written to be as vague and broad as possible, without being
completely meaningless. (As the staff tech writer at that startup, I had a hand
in reviewing some of my former employer's patent applications). So
you frequently can't tell what was actually patented, and an
alleged "infringement" can take place that had little to do with the
original invention. Tim O'Reilly (@timoreilly) suggested a return to the days when a patent application had to include the actual invention (for
software, that could mean source code) being patented. This would
reduce much of the ambiguity in what was actually patented, and might
prevent some kinds of abuse. Whatever form
it takes, better scrutiny on the part of the patent office
would be a big help. But is that conceivable in these
days of government spending cuts and debt ceilings? Larger filing fees, to
support the cost of more rigorous examination, is probably a
non-starter, given the current allergy to anything that looks like a
"tax." However, inadequate review of patent applications
effectively imposes a much larger (and unproductive) tax on the small
developers who can least afford it.
If we can't rely on the patent office to do a better job of reviewing
patents, the task falls to the Apples and Googles of the world — the
deep-pocketed players who rely on small developers — to
get into the game and defend their ecosystems. But though that's a
nice idea, there are many reasons to believe it will never happen,
not the least of which is that the big players are too busy suing each
other.
Apple and Google, are you listening? Your communities are at
stake. Now's the time to show whether you really care about your
developers.
Crowdfunding the defense of small developers may be
the best solution for the immediate problem. Is this a viable
Kickstarter project? It
probably would be the largest project Kickstarter has ever attempted.
Would a coalition of patent attorneys be willing to be underpaid while they contribute to the public good? I'd be excited to see such a project start. This could also be a project for
the EFF. The EFF has the expertise,
they list "innovation" and "fair use" among their causes, and they
talk explicitly about trolling on
their intellectual
property page. But they've typically involved themselves in a
smaller number of relatively high-profile cases. Are they willing to
step in on a larger (or smaller, as the case may be) scale?
None of these solutions addresses the larger problems with patents
and other forms of intellectual property, but perhaps we're better
off with baby steps. Even the baby steps aren't simple, but it's
time to start taking them.
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