Patent Trolls in the 21st Century

Moore’s Law has been a powerful enabler of innovation because every 36-48 months you get twice the CPU cycles at half the price. In 8-12 years, Moore’s law delivers 10x the performance at 1/10th the price, making the seemingly impossible relative cheap, if not free. Consequently, venture capitalists-even after the Internet bubble and the financial meltdown-largely prefer to invest in technology-driven companies in preference to almost anything else. Moore’s Law simply opens up so many new business frontiers.

Except for one small problem…Patent Trolls, aka non-practicing entities.

Cartoon showing Microsoft colluding with patent trolls

The business model of a troll is not to open up a new field of business, but to merely place a fence across the frontier. In the good old days of America’s western expansion, such a fencing strategy would be laughable, because the fence cost more than the land it was protecting, and because the land was so vast that it was virtually impossible to adequately build a fence that could contain any concerted effort. But patents, which can be written so broadly as to cover “Controlled Flight” can create a virtually infinite fence. And the cost of tying up an entire industry is a few tens of thousands of dollars for those who know what they are doing. This is the very opposite effect of what the US Patent system was originally designed to effect.

But it gets worse. It’s bad enough that individuals might be placing these legal tripwires in front of all sorts of new potential fields, but now monopolies have recognized that they can use these non-practicing entities strategically, as shown in the above cartoon. What better way to kill innovation than to give ownership control to entities whose effect on the system is counter-innovation? Moreover, as the cartoon illustrates, it provides the desired anti-competitive effect without the monopoly itself acting as the direct anti-competitive agent.

I have long believed that software patents are like landmines, devices that have unpredictable destructive power, and a threat to innovators who often cannot know of their existence until the damage has been done. This latest chapter in the story tells me that they are more dangerous than ever, and that it is more urgent than ever to mount a serious campaign to disarm them all, before it is too late. If we can elect a government that believes that “open source is the best form of civic participation”, then we can surely find the political will to make open source (and free software) innovation 100% legal. There are many places to make your voices heard. In the USA, you can start with End Software Patents. In Europe, No Software Patents!. And there are many others. It may seem like a bother, but sometimes political action is needed to enjoy necessary freedoms.