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Stanford Law Professor Raps Patents As Barrier To Innovation

The government shouldn't regulate software development through patent enforcement, Lawrence Lessig says.
Lawrence Lessig, Stanford University law professor, author, and member of the board of the Free Software Foundation, urged open-source developers Wednesday to actively oppose the use of patents to tie up software functionality.

After years of case law, "there's no clear showing of benefits over harm" in software patents, he argued in an address to attendees at the Open Source Business Conference in San Francisco. Patents exist to protect a particular company's development effort, but they end up serving as a means for early innovators in a field to tie up subsequent innovation years later through legal means, he said.

Being challenged on a patent or copyright violation will immobilize a young, innovative company's resources in the courts, or worse, put it out of business. SonicBlue, owner of the ReplayTV digital video recorder, was sued in 2001 by Disney ABC network and the Viacom Paramount movie studio for violation of copyright. The plaintiffs did not have to prove their case to get SonicBlue out of the market. It went bankrupt 18 months later, having spent $3 million a quarter defending itself, Lessig said.

Lessig said it didn't matter how often he and other free-software advocates spoke out against overuse of patents and copyright. "I'm a puny Stanford law professor. If you're depending on me, you're lost," he warned. Large companies that frequently file for patents represent an established lobby for the laws that keep the U.S. Patent and Trademark Office in business. "That huge sucking sound is Microsoft filling its arsenal with lawyers," he said.

Microsoft chief software architect Bill Gates said in a July 29 meeting with financial analysts that Microsoft planned to apply for more than 3,000 software patents in 2005.

Although not mentioned by Lessig, IBM also frequently seeks patents on its software. In 2001, it filed applications for 3,411 patents and was the largest filer for nine years in a row before that, according to a company biography on the Gurteen Knowledge Web site. Small companies also frequently patent their developments as well.

IBM has pledged not to use its patents to restrain open-source code developers. But Lessig said any company building up libraries of patents might be unable to resist the temptation to claim ownership of software and sue future innovators who are invading what the established company considers its turf.

"The government should stay out of regulating software innovation," said Lessig, claiming he was only invoking a time-honored stand of adherents of the Republican Party. He shouldn't be called a Communist for doing so, he added. "The biggest problem is, this debate is dominated by lawyers and lobbyists. You have to fight," he concluded.

Open-source-code software developers can actively support political candidates that oppose the excessive granting of patents, he said. They can invest in companies that foreswear the use of patent-based legal action against other software developers. "To what extent do you support free organizations? Do you spend as much there as you spend with companies that have monopolies?" he asked.

The debate is miscast as the United States with its patent laws versus China and other places that don't enforce U.S. patents, he said. Instead, it should be viewed as a contest of the interests of big, established companies versus small companies and the innovators yet to come.