I am here speaking software patents. I was replying to a thread on G+, and wrote a very long reply, that indeed is a post. It’s on Red Hat patent promise, which has some unfortunate language that can be interpreted as “in general software patents impede innovation”, meaning that in some cases they don’t. I think that my reply can be of more general interest and make an excerpt here, with a few minor edits.

The post

I hate to defend rich companies and not getting paid for it (not that it would be the first time ;-), but in this case I will make an exception, also because the people who conceived the strategy of registering software patents for defensive purposes are good friends and trustworthy Free Software friends. Red Hat is a company full of cash, which is eating chunks of market away from even richer companies. It makes software, Free Software, it contributes heavily to Linux, it has no proprietary exploitation of the software it makes.

But they live in a world where all competitors do not hesitate to use all their weapons, including patents, to elbow their way. Microsoft was in the same position, huge power, tons of cash, no patents, they advocated patents are bad for software. Then they realized they could not do without a full stack of patents, because they simply could have been at the mercy of competitors if they decided to “go nuclear” (rings a bell?); then Microsoft started patenting everything and buying companies full of pats like crazy, (and oddly enough changed their mind on how patents and software are not a good match). This shows how nobody is immune from the patent threat. I advocate as strongly as possible that software patents must be abolished, or ‒ to put it more appropriately ‒ software should always be outside the scope of patents. But this is not the case, and short term strategies must be put in place. If you see people with clubs and forks approaching, either you flee or grab anything you can to defend yourself.

It is not a good thing, it is a necessary evil for a S&P 500 technology company in these crazy years when nearly everybody in technology have lost their mind and there are multi billionaire foul-mouthed companies who say that a tablet manufacturer “copies” and “steals” their product because they make it rectangular with rounded corners.

Do we trust a publicly traded company because they are good folks? NO. Company are not good or evil, they are as good or evil as their shareholders and management make them to be. Today the folks are really nice people, tomorrow who knows. See Nokia for some reference. The only thing we he have is the law and the principle pacta sunt servanda. A public promise like that is a binding statement that can be used by way of what is called “estoppel”. Surely there are tricks that can be played, patents can be dumped to friendly NPE (see at Microsoft), more commonly referred to as “trolls”. But a cleancut promise is binding and hard to recant. Plus Red Hat has founded and funded OIN. There are hundreds of companies out there who can legitimately claim they are licensees of all those patents that Red Hat has amassed. Again, this is long-term reassuring.

Is it enough? Surely not. As I love to tell to my friend Keith Bergelt, OIN is tactics, we need a strategy, and the strategy is in the words of Judge Posner: patent protection must be rethought to only include areas of technology where patents are meaningful incentive to R&D ‒ if such areas exist, and I am still full of doubts this is the case. In any case they should be treated as they are: state-granted monopolies that must be treated as such, not as “property”. Infringing a patent must not be considered as “abusing one’s property”, but as interfering with some state-granted monopoly, which is a legitimate thing to do in many cases, first and foremost when a technology becomes relevant to an adopted standard (like in the GSM or wi-fi space). Surely patents should be never as broad as to not allow follow-up innovation. Patents, and everything wrongly collectively called “intellectual property”, must not be a landrush where the first takes it all. They are an incentive that might in theory be useful as long as they work as an incentive to the common good. If they cease to be, as patents have long since ceased to be, they must be repelled.

And now I am looking at you, Google. You make boatloads of money and have spent tons of cash to amass a patent portfolio to very little avail. Quit this nonsense, make a better use of money. You must start speaking “patent on software must not be allowed” as soon as the CEO wakes up and stop saying it when the last employee has gone to bed, then go back to step one. And put money, and weight, and influence on it, raise public awareness as you did with #ACTA, because this is today’s issue, for you, for us, the entire technology field. Wanna do no evil? Start doing something good for the world, in your own interest.