Obama recently announced his intention to appoint David Kappos, IBM VP and general counsel, to head the US Patent and Trademark Office. While some press highlights his changes to US patent policy, even a quick glance at the changes reveals them to be no serious challenge to US patent policy or IBM’s power to avoid the trouble US patent policy causes everyone else.
A little background on software patents
To put this into context, consider the problem of software patents. Software patents are government granted 20-year monopolies on a set of ideas expressible in a computer program. The reason you don’t see MP3 software in free software operating systems coming out of the US is because the algorithms you’d need to use to make or play an MP3 are covered by patents. The Fraunhofer corporation, which holds patents that read on MP3, licenses their patented algorithms in ways that are incompatible with the freedoms of free software. Therefore distributing (or even using) MP3 software without the suitable patent licenses makes the distributor run the risk of losing a patent infringement lawsuit.
To avoid that risk but supply the ability to play high-quality audio, free software developers use other formats like Ogg Vorbis and FLAC instead. Ogg Vorbis is not compatible with MP3 but it gets the same job done: making and playing digital recordings.
So what does this have to do with President Obama?
Software patents hurt all developers except those at IBM because IBM holds the most patents. Holding the most patents means IBM can cross-license far more easily than any other patent holder. In fact, we know how valuable cross-licensing is to IBM because IBM has told us. IBM has told us cross-licensing outweighs the value of collecting patent license fees by an order of magnitude. IBM got ten times the value of using patents held by others than licensing its own patents. This means IBM alone can skirt the trouble the patent system causes everyone else. IBM can completely undo the alleged advantage the patent system is supposed to give smaller organizations trying to commercially launch their work. You really should read Richard Stallman’s examination of the US patent system as it applies to software development for a fuller description of the details on how IBM’s statement in 1990 reveals the harm done to all software developers under the USPTO’s thumb.
What should be done about this?
The solution is to completely deny anyone software patents so software developers can go back to relying on trademark and copyright law which is sufficient to avoid defrauding consumers and enforcing licenses, respectively. But I doubt the world’s largest patent holder is in favor of disempowerment, and now that they have a man running the USPTO I doubt we’ll see that office seeking to make software algorithms unpatentable.
This appointment will follow sending two RIAA lawyers to fill the number two and three positions in the Department of Justice. I think what we’re seeing here is just another instance of how corporate-friendly President Obama is. The Left widely denounced appointing industry insiders to shape federal policy to benefit the corporations they came from when it happened under President George W. Bush. Many on the Left were rightfully livid about Vice President Cheney’s benefiting Halliburton and took every opportunity to remind us of that relationship. But now, with Obama, these appointments to powerful federal positions get little criticism. How much a corporatist does Obama have to be to get those who reflexively supported him see how bad his choices are?