Free Software friendly patent pools
Posted Aug 27, 2010 18:59 UTC (Fri) by FlorianMueller
In reply to: Free Software friendly patent pools
Parent article: A very grumpy editor's thoughts on Oracle
Thanks for finally pointing out your affiliation with Red Hat. Nevertheless my answer was the right one.
The formation of Free Software friendly patent pools. [...] Those who fund them create a free market around the software assets that matter to them.
So far there isn't even one credible example of those pools having helped a company against which patents were asserted. The OIN's proponents suggest that the OIN helped TomTom. The press release on TomTom's settlement with Microsoft, however, made it clear that TomTom ended up paying royalties to Microsoft plus made a commitment to modify its code to work around certain patents. So it's pretty clear that TomTom lost. Everyone else whom Microsoft has taken to court has also ended up that way (an announcement according to which those companies pay), most recently Salesforce.
So your proposed solution is a failure. Such a failure that companies like Amazon and HTC just paid right away instead of even trying to do anything together with the OIN, and that Oracle can sue Google although both are OIN licensees and in formal (but currently pretty useless) terms have a cross-license in place with each other via the OIN.
I also don't see that your proposal works against Apple trying to force HTC to drop multitouch, or against IBM's anticompetitive intimidation of TurboHercules.
Unfortunately, patent royalties are inevitable as long as there are patents, and are the fundamentally lesser problem than exclusionary use. If you want to make free software ideology the law, convince lawmakers that it's a good model. Lawmakers just have to look at how little acceptance the GPLv3 has to see that it's not what the industry at large wants as a business model. Red Hat does well, but it didn't create Linux. That's a business model that doesn't work for true innovators. You can't build an entire economy the Red Hat way because then everybody would just be waiting for someone else to innovate to jump on the bandwagon.
In my view, software patents are not needed to enable software innovation. However, the industry largely wants them, and those in the industry who are against them don't make any serious effort to abolish them, which suggests that the problem isn't a pressing one. Consequently, lawmakers don't abolish software patents, and "infringers" (as much as I hate the term in connection with patents) should be glad if they get a good license deal rather than being shut out of a market or being forced to cripple a product the way Apple tries to impose it on HTC...
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