on joe on patents

patents!Some comments on joe’s post on Microsoft’s patents:

they’re unlikely to come after Linux distributors for the well-known “mutually assured destruction” reasons

Which is why they are going after Linux users, most of whom have no patents of their own to retaliate with. Besides the original Fortune article, check out this latest Ballmer quote, where he carefully points out that ‘people that use Red Hat’, rather than Red Hat, owe Microsoft money. (Of course, implicit in that is a threat against all Linux users who haven’t bought immunity from Novell.)

The infighting amongst the community (*cough* with Novell) is counterproductive to the larger goal. We need to advocate for patent system reform…

Well, yes and no; reform is important, but Novell’s alliance with Microsoft actively undermines reform by making the current system seem more reasonable. From now on, on both antitrust and patent fronts, Microsoft gets to point to Novell and say ‘we came to an agreement with Novell, so the system works fine- the problem is that Those Linux People are irrational.’ This is probably the second most damaging part of the Novell-MS alliance (right behind the constant release of free-but-not-really code which MS can later use to threaten users with.)

We need to advocate for patent system reform — like getting involved with the peer review that the USPTO has recently launched

While I do agree that advocating for patent system reform is a good thing, Peer To Patent (P2P) is a mixed bag for open source. If P2P reaches its goals, Microsoft and other large players (including some of the trolls) will have fewer — but still plenty — of patents to use against consumers. And those patents will be issued faster and be harder to challenge in court. On balance, probably still a good thing for the industry, but far from a solution to open source’s problem.

Until then, sadly, we have to play the game and get as many defensive patents as possible…

Completely correct, except that there is no ‘until then’, unless by reform you mean ‘abolition of software patents’. Otherwise, likely everyone will always have to play the game; ‘reform’ by itself will not be sufficient to protect anyone, since trolls with a dozen strong patents will be just as threatening as trolls with hundreds of patents of unknown quality.

… while rebuffing Microsoft’s scare tactics at the same time.

Completely agreed. Novell’s deal compromises the community’s ability to do that, though.

Tangentially, if you want to see what the most advanced patent trolls are thinking, this paper (co-written by a brilliant stanford IP prof and Nathan Myhrvold of Intellectual Ventures, formerly Microsoft) is a really interesting read. It deserves much broader coverage and interest than it has received.

Also tangentially, this post is reaching its one year anniversary and is still the top Google hit for ‘Ubuntu patent policy.’ Compare top hit for ‘Novell patent policy‘ and ‘Red Hat patent policy.’ But hey, they throw good parties. :)

[NP: Radiohead, In Rainbows]

[Picture by Flickr user Ioan Samueli, used under a CC-BY-SA license.]