Intellectual property gone mad

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.

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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.

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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.

Related:

• Should the patent office open its internal guidelines to the public?
• Disastrous implications of new Apple patent for blocking cellphone video
• Patent database up and running
• Why software startups decide to patent … or not
• Apple offers some patent cover