The Open Source Development Laboratory yesterday announced a project to create a library of patents available to the open source community. This is a logical project for OSDL. Such efforts, in this or other contexts, shrink transaction costs and systemetize knowledge.

But the spin put on this by the various participants, as reported by C|Net News, is cloying. For example:

"We're watching a groundswell of alternative ideas coming forward to try to counteract some of the patent terrorism that's coming up in industry," Steve Mills, general manager of IBM's software group, said in an interview.

Also, I don't see IBM or OSDL in the KSR case. But Microsoft has jumped in, filing an amicus brief urging the Supreme Court to tighten up the non-obviousness standard. This puts Microsoft on the side of the angels (i.e., the same side as PFF, which also filed an amicus in the case).

Most irritating, though, is the concern for the little guy expressed by the behemoths in the article.

Look at it from a common sense point of view. If you are a small inventor, individual or corporate, you depend on the patent system. Suppose you invent something that might be useful to IBM. Without a system of patent protection, once you market it, IBM can simply duplicate it. Since IBM will not have to recapture any investment costs on this invention, and has massive economies of scale, it will sell the innovation at a lower cost, and your business is dead.

Nor can you sell the invention to IBM. To sell it, you must reveal it. Without patent protection, they can say, "Hey, neat! Thanks!" And then duplicate it. You can try to protect yourself by contract, but for a small entity to sue IBM over the nitpicks of contractual language is suicidal. It is a notoriously take-no-prisoners litigator, and will break you on the medieval wheel of discovery.

So, if you are an inventor or a small, innovative company, here are four reminders:

(1) Patents are your friends.

(2) Regard the open source movement with a wary eye. It has pretty much been captured by a strange alliance of corporate behemoths and anti-property abstractionists, and is run in the interests of this odd couple.

(3) All the talk that treats "community" as co-extensive with "free" or "open" is absolute blather. Humans have been forming communities -- cooperating -- or trying to, for thousands of years. When they cooperate successfully, it is because they use markets and property rights to do so. When they try to use other means, ranging from pure altruisn to totalitarianism, they may succeed in the short term, but not for long.

(4) There is indeed a huge role for cooperative behavior in the tech world, but the most promising approach is through the flexible arrangements that can be developed in the context of standard setting.

posted by James DeLong @ 8:09 AM | Patents

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