Patent Reform? Really?

In the context of a big ideological battle between those who think government can be a force for societal good (New Deal Democrats, progressives) and those who believe in the Law of the Jungle (fascists, Republicans, conservatives), Americans Outside-the-Beltway are hoping-- by large margins-- that President Obama will step up to the plate tomorrow and do something big to turn around the economy. Republicans Inside-the-Beltway, not really giving a damn what Americans Outside-the-Beltway think and-- knowing full well that the millions of dollars spent on overtly and covertly fascist propaganda by billionaire crackpots like the Koch Brothers, Charles Schwab, the DeVos family and other extreme right billionaires can persuade at least 40% of voters that, for example, arbeit macht frei-- they are determined to obstruct and sabotage anything President Obama proposes that will alleviate any of the country's worst problems. Republicans and Bush may have created those problems but they have been determined since the day he was elected not just to pin them on President Obama but to prevent him from doing anything to ameliorate them.

Tuesday the Senate was back from its summer vacation. Miss McConnell, who declared long ago that his number one priority for Obama's 4 years who be to make sure he is a one-term president. He and his caucus have blocked every effort to help the American people overcome the effects of Republican policies. He got up on the floor, hissing and lisping that he and his caucus are as determined as ever to obstruct and obstruct and obstruct. "[E]very one of us, I'm sure, is aware of the fact that many Americans are not only frustrated with the state of our economy, but also with the state of their government. I don't think any one of us is under any illusion that the American people were particularly eager to see us come back."

Well, as much as many Americans loathe these partisan hacks and evil-doers, they would like to see some action to create infrastructure jobs, as Obama says he intends to propose tomorrow. Miss McConnell and his cronies are having none of that, of course. As far as they're concerned President Obama's proposals are DOA:

"I'm...certain that, taken as whole, they'll represent more of the same failed approach that's only made things worse over the past few years, and resulted in even fewer jobs than when he started. Over the weekend, the President tested a few of the lines I expect we'll hear on Thursday. His central message, evidently, is that anyone who doesn't rubber stamp his economic agenda is putting politics above country. With all due respect, Mr. President, there's a much simpler reason for opposing your economic proposals that has nothing to do with politics: they don't work."

Miss McConnell wasn't done yet. He let the ever-compromising president know that, predictably, the scrapping of regulations to reduce smog pollution would only make the far right feel more entitled to scrap all regulations. McConnell wasn't giving him any credit or even meeting him halfway: "[Y]ou don't lift a single regulation and suddenly claim to be Margaret Thatcher," he said archly, opening his closet door just a teensy-weensy little crack.

Tuesday, though, something did pass: a cloture vote to shut down the right-wing filibuster to prevent patent reform. It isn't a big sweeping piece of legislation that most Americans care about or even understand. Here's Austan Goolsbee explaining what it's all about and how the Obama administration is trying to solve it:



In the end the filibuster was shut down 93-5, only teabaggers Jim DeMint (R-SC), Rand Paul (R-KY), Mike Lee (R-UT), Ron Johnson (R-WI) and Tom Coburn (R-OK) obstructing even this. (Marco Rubio was out.) The only other vote Tuesday was to confirm Bernice Bouie Donald, of Tennessee, as a judge for the Sixth Circuit Court. After months of foot dragging, it passed 96-2, only DeMint and Vitter voting against her, just because that's what they do.

Back to patent reform again. According to IT World, the new legislation isn't likely to even do the trick in terms of the software industry's actual needs. There's been a whole lot of suing going on.

There has been a lot of hullabaloo about the validity of software patents, what with everybody seemingly suing everybody in the mobile sector these days.

It has also been noted that some of the companies who actually have instigated some of these lawsuits have, at one point or another, actually had public positions against software patents.

Microsoft, curiously, was one of those opponents. Just after software patents were found to be enforceable in the 1980s, CEO Bill Gates wrote a memo arguing that such patents would be the worse thing in the world for a company like Microsoft:

"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then they have a 17-year right to take as much of our profits as they want."

Of course, those were different times, when Microsoft was young and carefree and their own patent portfolio was meager. Contrast those ideas from Gates to those of Microsoft General Counsel Brad Smith in a 2007 CNET article:

"Protection for software patents and other intellectual property is essential to maintaining the incentives that encourage and underwrite technological breakthroughs. In every industry, patents provide the legal foundation for innovation. The ensuing legal disputes may be messy, but protection is no less necessary, even so."

In other words, software patents are bad, until you have enough of your own to start setting up your own lawsuits.

I could level off some of the usual scathing "Microsoft is evil" remarks that one would expect from an open source user and advocate, except it would be inappropriate because nearly every other company does business this way.

This morning while I was waiting for my daughter to get ready for school, I read an interesting blog entry on litigious business practices using what's known as occupational licensing. The main thrust of the article described how many state and municipal food inspection and licensing processes are being abused by competitors to keep new businesses from interfering. Street food vendors, for instance, are among those business groups that keep getting targeted by Draconian enforcement of existing (and sometimes brand spanking new) regulations.

It's not just the food industry. Many of the situations the article described were simply egregious:

"My home state of Ohio fined a parent $10,000 for competing with the Cleveland Bar Association. The CBA filed a complaint that the concerned parent represented his autistic son without a CBA-approved attorney when he sued his school board because of the poor quality of his son's education.

"In California you can't help people devastated by forest fires unless you're part of a politically connected contracting crew. The government went so far as to send out a press release during a massive fire warning unlicensed workers that doing things like removing debris is a serious felony subjecting them to $10,000 fines and 16 months in prison.

"Monks were threatened with crippling fines and jail for selling wood boxes. The funeral industry didn't like the competition."

So again, it's pretty hard to single out a company like Microsoft when all they are doing is playing the same stupid game nearly every other company is playing: abusing the legal system to get what they want.

And history is about to repeat itself. Google, which has the oft-cited motto "Don't be evil," has been very loud about their opposition against software patents. But after buying Motorola Mobility (and presumably getting their hands on some software patents), how long will it be until Google initiates their own big patent infringement lawsuits? Many will argue that it will be in defense, sure, but will there ever be a point when someone will just keep making a stand?

Critics of software patents argue that it would be great if all the extra legal overhead of this litigation could just go away. But if the bottom line says that it's cheaper to just hire better lawyers rather than suffer the potential risks of young upstart competitors stealing even more revenue and customers, then businesses will opt for the former every time.

This is why lawmakers only make half-hearted efforts to examine patent reform. They may listen to the latest big company that complains (like Google), but if and when that company moves on to pursuing their own litigation, why bother listening? Not to mention lobbying pressure from all the lawyers who are getting paid quite well to pursue these cases on behalf of their clients.

It's a depressing situation all the way around, in all business sectors, at all levels of government. Litigation is a business expense that many businesses are willing to put time, effort, and money into if it can give them an edge over a competitor.

Can software patents ever be reformed? Possibly, if enough lawsuits lose and companies realize that there's no percentage in the game.

It won't be an ethical decision that drives reform, sadly, but a financial one.