When Three Tribes Go To War

OK, I admit it. Software patenting is a less than an attractive topic! It’s intricately bound to the purposefully Byzantine world of law, fortified with ideological dogma, and liberally coated with political scheming. There are so many reasons to stick your fingers in your ears, shut your eyes and hum to yourself “I’m in my happy place, I’m in my happy place, I’m in my happy place” whenever the topic comes up.

The problem is that it’s too damned important to ignore. Unfortunately, because of the perfectly understandable dearth of awareness by non-legal types, the critical debate on software patents has been dominated by three loosely-formed tribes. Each tribe will proclaim, hand on heart, that their way is the one true way – that their perspective on patents is the most optimal for society in general.

But ladies and gentlemen, make no mistake. Underpinning the beliefs of each tribe is a deep commitment to a preferred business model. The best way to understand the current state of the software patent debate is not to consider the arguments on face value but rather to analyzing the source of each tribes vested interest.

As a service to you – the non-aligned, largely confused majority – I submit to you my quick compendium of the different tribes and their key characteristics. Gross generalizations and tongue-in-cheek commentary have been liberally applied to make this as interesting as possible.

The Traders – The upstarts, the newbies, the punks. A decade ago they were little more than a twinkle in the eyes of some option-rich engineers. This tribe loves patents in every possible variation because it is their raison d’ être. In their eyes a patent is not simply a government-granted exclusive right designed to encourage innovation. Oh no! It’s a rentable asset to be bought and sold on an open market. They are the uber-landlords of the IT industry looking for any opportunity to lease some floor space, be it in posh upmarket digs (the patents which are unquestioned innovations) or in inner-city slums (junk patents bound to be invalidate in their first judicial test). What makes their model so special is that their tenants have no idea which one they’re actually paying for.

• Notable Members – Intellectual Ventures, Acacia Technologies, Stanford University (note – it’s actually most universities but they all like to keep their tribal affiliation a tightly held secret)
• Source of their wealth – component license fees from manufacturers
• Tribal Hero – Nathan Myhrvold
• How They See Themselves – the torch bearers of Adam Smith
• How Other Tribes See Them – trolls! They’re the genetically-mutated demon spawn of Richard Fuld, Jeffrey Skilling and Gordon Gecko.
• Position on software patents – problems? What problems? Everything is fine just as it is. The only real problem are some PAC funded members of Congress and the judicial activists at the CAFC who are hell-bent on destroying free enterprise in America.

The Oligopolists -The beneficiaries of the status quo. If Silicon Valley had a gentleman’s club, filled with over-stuffed leather sofas, seersucker suits and the stench of Cuban cigars, then these guys would be charter members. There’s is a genteel world were club members can civilly discuss their commercial disputes over a single malt whiskey and resolve them with a handshake and a cross-licensing agreement. And while cub members like to say their doors are open to those less well off, the requirements of membership – massive patent portfolios, the money to pay for a small army of lawyers and regular appearances at big ticket political fundraising events – means they can relax in the comfort of knowing they won’t be initiating new members any time soon. Even though they share a lot in common with the traders they hate them because they think they’ll open a new and better club and exclude them (and they’re right).

• Notable Members – Google, Microsoft, IBM. Accenture
• Source of their Wealth – license, service and/or advertising fees paid for by whoever they define as the “user”
• Tribal Hero– Senators Patrick Leahy (D-VT) & Orem Hatch (R-Utah)
• How They See Themselves – the torch bearers of Alexander Hamilton
• How Other Tribes See Them– Emperor Palpatine from Star Wars, Carter Pewterschmidt from the Family Guy
• Position on software patents – patents are an important part of a functioning market economy – so important that it should be left to the captains of industry (that’s us) to chart their course in a way which won’t disrupt the well-oiled machine that is the status quo.

The Guild Masters – These are the digital anti-industrialists. The intellectual center of this tribe is made up of the perennial contenders of the IT industry – those with a mastery of the dark art of software but without enough equity in a software company to afford a villa in Woodside. Guild masters are romantics. They long for the old world of artisans and craftsmen. A world where people were praised and remunerated based on their ability to blend technical acumen with artistic creativity. Lost on this tribe is the simple fact that this model is usually more costly and less efficient than packaged mass-produced software. Not to worry – Guild Masters are perfectly comfortable living off the patronage of others. In their world view, any property right which can inhibit their self-proclaimed right to unfettered technical self-expression must be fought. To this tribe, the only thing more concerning than a patent is a programmer in Bangalore who can write the same code they can at a tenth of the price.

• Notable Members – Red Hat, Free Software Foundation
• Source of their wealth – for most of them, it’s their salary. For a select few, it’s the difference between the money they collect and the salaries they pay their staff of like-minded Guild Masters.
• Tribal Hero – Richard Stallman
• How They See Themselves – the torch bearers of Thomas Jefferson
• How Other Tribes See Them – Pinkos, commies, Utopian Socialists
• Position on software patents – patents don’t protect developers, developers need protection from patents