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diff --git a/talermerchantdemos/blog/articles/en/patent-practice-panel.html b/talermerchantdemos/blog/articles/en/patent-practice-panel.html new file mode 100644 index 0000000..9846983 --- /dev/null +++ b/talermerchantdemos/blog/articles/en/patent-practice-panel.html @@ -0,0 +1,235 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.77 --> +<title>Daniel Ravicher's FFII panel presentation +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/patent-practice-panel.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>New Developments in Patent Practice: Assessing the Risks and Cost +of Portfolio Licensing and Hold-ups</h2> + +<p>by <strong>Daniel B. Ravicher</strong></p> + +<p><em>This is a transcript of a panel presentation given by Daniel B. +Ravicher as the executive director of the Public Patent Foundation on +Wednesday, November 10, 2004, at a conference organized by the +Foundation for a Free Information Infrastructure (FFII) in Brussels, +Belgium. The transcription was done by Aendrew Rininsland.</em></p> + +<p>Thanks. I think, for me, the whole two days of conferences boils to +really one question, and the whole debate boils down to one question: +“How do we want success in the software industry to be +determined?” +</p> + +<p> +Or, another way, who do we want to determine those who succeed and +those who fail in the software industry? Because there are various +people who can make this decision. We can have bureaucrats make the +decision about who wins and who fails, or we can let consumers make +the decision about who wins and who fails. If we want software to +succeed because we want it to succeed on its merits and be the best +software that the public can have, it's more likely we want a system +that lets consumers and end-users make the decision about which +software is selected — not bureaucrats. +</p> + +<p> Now, what does that have to do with patents? The larger you make a +patent system, the more you allow the patent system to impact +software, and the more you're allowing success in the software +industry to be determined by patent-based bureaucrats, those who can +take advantage of the bureaucracy which grants and resolves disputes +regarding patent rights. It's a bureaucratic competition, not one +based on the decision of consumers. That means it's less likely for +the merits to be determinative of what software succeeds. +</p> + +<p> +We have to recognize that even without software patents, large +developers have intrinsic advantages over small developers. Large +developers have the resources, large developers have the +relationships, large developers have the distribution channels, large +developers have the brand. So even without software patents, large +developers are still at an advantage — they start out at an +advantage. Well, then, the next question to me is, “If we have +software patents, does that increase the advantage of large developers +or decrease it?”, because the patent system could benefit small +developers and therefore that could erode some of the naturally +existing benefits that large corporations have. +</p> + +<p> +I think that point's been belaboured already. We know that small +developers are not benefited by a patent system, in fact, they are +prejudiced by a patent system. So, enlarging a patent system to apply +to software development only enlarges the disadvantage small +developers have in competition. Again, it comes back: Who do we want +to make the decision about which software developers succeed, do we +want consumers, based on merits and functionality and price, or +bureaucrats, based on whom patents are granted to and who wins patent +infringement cases? +</p> + +<p> +The other thing we need to recognize is whether or not the patent +system has a preference for users of certain types of software. A +patent system as we have in the United States benefits those under a +software distribution scheme which allows them to charge +royalties. This is because all software has to deal with the risk of +infringing on patents. Patents don't discriminate between open-source +or freely licensed software and proprietary software: a patent covers +certain technology, it doesn't matter how the software's distributed. +But proprietary software is licensed with a fee so the cost of that +risk can be passed on to the consumer without them recognizing +it. They don't see it, it's baked into the price of the software +they're buying and if you were to ask a consumer if they've bought +insurance against being sued for patent infringement, they would say +they don't believe that have. +<span class="gnun-split"></span>But in fact they had, because if someone +sues a user of Microsoft software, Microsoft has built in the cost of +stepping in to defend them from that into the cost of the license +fee. On the other side, if you have royalty-free distributed software +such as open-source or free software, you can't bake in the cost of +that risk so it becomes more transparent. And this makes consumers or +users think that open-source is in a worse position than proprietary +software when it's actually not. It's just because the open-source +distribution scheme does not allow someone to sneak in the cost of +that risk to make it opaque instead of transparent. So the patent +system not only prefers large developers over small developers, it +also prefers users of proprietary software over open-source software. +</p> + +<p> +If we come back to the initial question, which I think this is all +about, how do we want success in the software market to be determined? +Do we want it to be determined by these types of factors, or do we +want it to be determined by who can get the best software at the best +price? +</p> + +<p> +Now, I think it's important to concede the point that people on the +other side will make, which is, will a less-onerous patent system, or +they would call it a ‘less-beneficial’ patent system, I +call it less-onerous, will harm their business, because people could +copy them. Well, large businesses aren't worried about being +copied. They really aren't. At least not by other large businesses, +this is why they enter into cross-licenses all the time. +<span class="gnun-split"></span>If a large +company really didn't want its software to be copied, why is it +licensing its patent portfolio to every other big company in the +world? Because it can't stop them from copying it once they enter into +that agreement, so this argument that , “Well, we're worried +about people copying our software”, the most likely people to +copy your software are other large businesses because they have the +resources and the ability and the distribution channels and the brand +and the relationships. Why are you letting them copy it? You must not +be that worried about it. +</p> + +<p> +And so the question is, then, does a patent system have a +net-beneficial effect or a net-detrimental effect on software +development? I think we've seen already it only decreases the ability +for open-source or royalty-free license software to compete with +proprietary software. In the end you have to ask, is less competition +beneficial for the software industry? I don't know what Europeans +think about that, I think Europeans are very pro-competition and I +know us on the other side of the Atlantic are very pro-competition as +well, and so the answer is never less competition is better for +consumers. And so I think as we bring the point home, if we had two +seconds in an elevator to pitch this idea to someone, software patents +have a net-negative effect on competition in the software +industry. +<span class="gnun-split"></span>True, they may increase competition in some ways, but the +net-effect is anti-competitive. And that's what putting the ability to +decide success in the software industry in the hands of the patent +office or in hands of the courts does. If you need examples, if people +think that's just rhetoric or your opinion, just point to the United +States. Microsoft is a very successful software company, I don't think +anyone would debate that. They've never had to sue anyone for patent +infringement. So they claim they need patents, but yet they've never +had to use them. They cross-license them and that's where we wonder, +‘If you're worried about people copying, then why are you +cross-licensing them to people?’. +</p> + +<p> +You know, the last point is, who else does a patent system benefit? If +it benefits large developers over small developers, is there anyone +else? A patent system benefits non-developers. Do we really want a +bureaucratic system that helps people who aren't adding anything to +society? What I mean by non-developers are trolls — which +everyone here is familiar with — people who get a patent either +by applying for it or acquiring it in some asset purchase and then use +it to tax other developers, other distributors of a product. +</p> + +<p> +Do we really want a system which encourages people to not add products +or services to the market place but only detracts from the profits and +capabilities of those that do? +</p> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. Broken links and other corrections or suggestions can be sent +to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations +README</a> for information on coordinating and submitting translations +of this article.</p> +</div> + +<!-- Regarding copyright, in general, standalone pages (as opposed to + files generated as part of manuals) on the GNU web server should + be under CC BY-ND 3.0 US. Please do NOT change or remove this + without talking with the webmasters or licensing team first. + Please make sure the copyright date is consistent with the + document. For web pages, it is ok to list just the latest year the + document was modified, or published. + + If you wish to list earlier years, that is ok too. + Either "2001, 2002, 2003" or "2001-2003" are ok for specifying + years, as long as each year in the range is in fact a copyrightable + year, i.e., a year in which the document was published (including + being publicly visible on the web or in a revision control system). + + There is more detail about copyright years in the GNU Maintainers + Information document, www.gnu.org/prep/maintain. --> + +<p>Copyright © 2006 Daniel B. Ravicher</p> + +<p>Verbatim copying and distribution of this entire article is +permitted in any medium, provided this notice is preserved.</p> + +<!--#include virtual="/server/bottom-notes.html" --> + +<p class="unprintable">Updated: +<!-- timestamp start --> +$Date: 2014/04/12 12:40:33 $ +<!-- timestamp end --> +</p> +</div> +</div> +</body> +</html> |