My article in InfoWorld this week rounded up the news of the White House initiative to deal with patent trolls and repeated some proposals I’ve made before on other reforms we could make to relieve some of the pain of the dysfunction while we wait for root-and-branch reform of the patent system.
The White House initiative is good and encouraging, but it’s a source for some concern. There are actually plenty of giant corporations who have found they can monetise their vast patent portfolios effectively. The careful construction of the White House proposals suggests to me that they don’t intend to take action against the behaviour of those corporations.
Their tactics are a lot like those of patent trolls. They approach innovators, demonstrate the magnitude of their patent portfolios, assert there is sure to be a conflict and then demand payment of tribute (euphemistically described as “cross licensing”, as if their victims have something to offer in fair exchange). This is all done under cover of NDA-imposed secrecy from the beginning, and those who dare say they are being shaken down — as TomTom did for example — are punished for their temerity. As a consequence of the NDAs and the out-of court settlements there are no public traces – the perfect shake-down.
This is just as chilling to innovation as the actions of non-practicing entity trolls. In some ways, it’s worse. Its perpetrators also use their patent portfolios to chill fair competition, acting in a way that surely should be considered a form of anti-trust when they take vast swathes of vaguely-described “invention” and attempt to apply it to their competitors to lock them out of markets or tax their profits. Preventing direct copying of actual, concrete inventions would be fair enough. That’s not what we’re talking about here though. We’re talking about attempts to control use of gestures, ideas and even rectangles.
So as we congratulate the White House for taking action against trolls, even going to the extent of creating cute animated graphics to promote their efforts, let’s not give their corporate advisors a free pass. Patents on pure software are abuse waiting to happen and they need to be eliminated. The worthy White House actions against trolls should not distract us from that goal.