Re: [Gnu-arch-users] contributors' licensing conditions

[Andrew Suffield]

On Thu, Jan 19, 2006 at 11:03:22AM +1100, Matthew Hannigan wrote:
> On Wed, Jan 18, 2006 at 06:39:11PM +0000, Andrew Suffield wrote:
> >  And I thought
> > everybody knew that defensive patents don't work any more, so there's
> > just no point.
> 
> Got any links for reading on that point?  I want to convince myself
> that (at least short-term) patents aren't a necessary evil.

Not off the top of my head (seen it in print a few times), but it's
simple enough. The idea of defensive patents is that when somebody
sues you for infringing on their patent, you can file counterclaims
against them for infringing on all of your ones, and then settle the
whole thing quietly with a cross-licensing deal.

The problem is that it assumes the person prosecuting you is actually
infringing on your patents. While it's a good bet that any software
company would be doing so, the lawyers realised several years ago that
there's no reason why software companies should be engaging in patent
lawsuits in the first place.

Instead, you find that you're being sued by a litigation company who
do nothing but hold patents and try to enforce them, and employ nobody
but lawyers. Defensive patents are completely ineffectual against such
companies - they aren't doing anything that could possibly infringe.
The only software they run is windows and wordperfect (since they're
lawyers). The software companies who filed the patents get their money
by selling the whole patent to litigation companies.

It's not quite universal yet, but I expect it won't be long now. Lots
(most?) of the big patent lawsuits recently have taken this form.

I anticipate that the market will slowly shift so that patents are
considered an asset for retailing to litigation companies, as a
primary or secondary revenue stream for 'software' companies. And that
money will mostly be spent on legal bills. Legally, it's sound - it's
just insane economics (unless you're a lawyer).

-- 
Andrew Suffield

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