Patent Law

Cold War

By Gary Odom and Jordan Kuhn

Linux godfather Linus Torvalds took potshots at patents in general and software patents in particular in a Linux Foundation podcast. Torvolds damns with faint praise Microsoft's restraint in patent assertion. From the remarks, one may conclude that casting from a pod makes one grumpy.

Torvalds:

Patents are nasty. It?s kind of hard to really say a lot more than the fact that patents on ideas in general are a huge mistake and the whole notion that you can have patents, business models and software is pretty broken to begin with... [O]n software, patents do not incentivize anybody and they do not actually help inventions; quite the reverse.

And it just does not work in software, and the reason it doesn?t work in software is any complicated piece of software contains so many pieces that nobody could even know whether, maybe, one out of a million different things might be under some completely trivial patent.

So, everybody just digs their head in the sand and basically ignores the issue and all the commercial companies try to gather their own patents just as a defensive weapon, not because necessarily they want to use them for offense, but because that way if somebody else comes and knocks on their door they can say, ?Hey, but I have this patent, and, by the way, I?m sure some of your lines have problems with that patent. So, let?s be friends and not bring up patents at all.?

[N]ow the big issue is all these patents trolls where the cold war-like situation doesn?t work at all because they don?t have any code or any product or they don?t sell anything at all. [Patents] favor the corporate world in the sense that if you see patents as a cold war thing, it clearly helps to be big and have lots of patents because they?re the equivalent of having lots of nukes, and small companies and individuals can?t have nukes; it?s practically not very accessible.

So, the model does favor large companies. On the other hand, again, that?s where the rogue state problem comes in. Large companies, in some ways, are more vulnerable to being blackmailed over patents, so when you have patent trolls, the trolls usually want to go after the big money, so they actually go after the large companies and now it doesn?t help to have lots of patents.

Torvolds on Microsoft use of patents:

I think that Microsoft really sees patents as a marketing thing and I think that for two reasons: a) it is what they seem to have used in the past. So far I don?t think Microsoft has ever sued anybody over patents. They have been sued for patents by other people, but I don?t think they?ve ? not that I?ve gone through any huge amount of law cases, but I don?t think they?ve generally used patents as a weapon.

But they?re perfectly happy to use anything at all as fear, uncertainty and doubt in the marketplace and patents is just one thing where they say, ?Hey, isn?t this convenient? We can use this as a PR force.?

Another reason why I don?t think Microsoft really seriously would go after patents is when you?re a convicted monopolist in the marketplace you really should not be suing your competitors over patents. I think that most Microsoft lawyers would say, ?You know, let?s not do that; that sounds insane.?

They?re perfectly happy to use patents in the détente and cold war sense.

Torvolds never gets around to b) on Microsoft's patent "marketing thing" perspective.

Torvolds is co-inventor on several software patents owned by Transmeta.

Full post as published by The Patent Prospector on February 05, 2008 (boomark / email).