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Thursday, 1 September 2011

The Patent Pledge: is there profit in self-restraint?


The Patent Pledge


No first use of software patents against companies with less than 25 people.
It may be possible to fix a subset of the patent problem without waiting for the government. If companies voluntarily renounce certain uses of patents, we can make patent law a moot point in such cases. [Learn More.]
These companies have agreed to be the first to publicly renounce aggressive use of software patents on small companies. Please join them!

Was this Kat hallucinating, or did his eyes serve him correctly? Above, via Tweets from @Claim_1 and @filemot, is the text of The Patent Pledge, an ingeniously subversive ploy by Paul Graham to achieve one or more of the following objectives:
  • to give patents and/or trolls a good name by curbing real and/or imagined excesses in the manner of their enforcement;
  • to make sure that creativity in software development is preserved by letting small furry little software companies develop without that constant fear of being sued by one of the industrial gruffaloes;
  • to refresh interest in open source licensing, which has all gone a bit quiet recently and which has a more collaborative ethos to it than simple restraint from suing;
  • to create a pool of surplus of redundant patent litigators who can then be retrained to do harmless tasks like embroidering lace tablecloths and giving strategic advice about what you can do with your software patent when you're not suing someone for it;
  • to test out an exciting piece of law school theory as to whether (i) a generalised public statement of this nature is capable of giving rise to some form of estoppel on the part of patent owners who take the pledge and then get twitchy about wanting to sue a small business or (ii) Paul Graham's own thoughts on the pledge are documents to which reference may be made when construing either the text of the pledge or a software patent owner who signed it;
  • to encourage those who think outside the box to revisit their old class notes on software copyright infringement and see if they still have any value;
  • to see how many investors die of heart attacks when they see on the list the name of a business that they have invested in but which isn't going to race to court in order to protect the software they've paid to develop.
Seriously, the IPKat thinks this is a very good way of getting people to think about the issues and to look towards constructive ways of dealing with them -- but he doesn't fancy the Patent Pledge as a piece of long-term business reality. He gets this feeling that quite a lot of software developed by small innovative companies ends up being successful not because bigger companies don't sue them for infringement but because they sell their patents to those bigger companies, which pay for the privilege but are better equipped to develop and commercialise them. Having said that, he has no data at his fingertips and is prepared to concede that he may be wrong.

As usual, readers' responses are welcome.

6 comments:

Anonymous said...

Business reality?

Surely you know that software is not related at all to business. It can't be. It is merely (take your pick) math, literature, music, not a useful art, not utilitarian... For these very reasons software should be outside the realm of patents. It should be outside the realm of copyright too. Software belongs to everyone to enjoy.

Mike Dowler said...

Also, many small companies reward investors by becoming attractive to large software companies. Presumably, once that happens, the large company becomes fair game fir an infringement suit? If so, won't that just replace one problem with another?

Anonymous said...

Isn't it really:

"to avoid driving them entirely out of business before they are large enough to survive the suit so the judgment can be satisfied"

or

"to ensure that the infringement is large enough that the damages award will cover the cost of filing the suit"?

What self-serving pap. Who in their right mind sues judgment-proof defendants anyway?

Anonymous said...

Can't agree that software should be for everyone to enjoy. It is surely the fruit of someone's labour, and if others find it of value they should be prepared to reward the author in the same way as, for example, authors, composers, artists etc. I doubt that there is any justification for simply appropriating software for no consideration - after all, you're taking bread off someone's table. Which is the whole point of IP, isn't it?

It's patently clear that software should have some sort of effective protection. The burning question is "what?" Anything which might replace the apparent "strict-liability and sue" approach would be an improvement, and get back to the spirit of encouraging innovation.

Anonymous said...

I think this is taking a slightly too narrow view. Why shouldn't software be for everyone to enjoy - if that's what the software author wants? I agree that software should be protected though so that it can be disposed of as its author(s) see fit, whether that is by selling it in shrink wrapped boxes or distributing it under the GPL.

Anonymous said...

Surely you know that software is not related at all to business.

I don't know what you are smoking, but it certainly sounds interesting.

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