On Wednesday, August 10, 2011 11:51:35 PM UTC+2, Cédric Beust ♔ wrote:
>
> On Wed, Aug 10, 2011 at 2:39 PM, phil swenson <[email protected]> wrote:
>
>> btw, you can recoup your costs by building good *products* that
>> customer want to buy.
>>
>
> Of course, but what if $BIG_COMPANY copies your product and releases it two
> months after your own for free, just because they have the money to do so?
>
That's not usually how this industry works.
This seems like ponies and rainbows reasoning on your part. You're
implicitly making the argument that if only there were enough (and well
implemented) patent laws, a $SMALLCORP can recoup its investment in
innovation even if $BIG_COMPANY is unusually agile and is trying to muscle
in on $SMALLCORP's new market. This is a frankly preposterous claim that
needs a heck of a lot of backup before I'd believe it. A small company that
can't outmaneuvre a big corporation is going to go bankrupt, fast. Even if
some draconian patent law could prevent that, I'm fairly sure society
wouldn't even want it (it would give a badly mismanaged slow-as-molasses
small company a 3 to 5 year monopoly on what could very well be a key
technology. From a society standpoint that's a very bad way of doing
things!)
Of course, laws are never perfect. Even with reform I doubt we'll get rid of
all the trolling and abuse, so the practical situation is in fact the very
opposite: This system means $SMALLCORP is even more screwed as usual. Let's
say $BIG_COMPANY is somehow very much on the ball and makes an active
attempt to barge in on $SMALLCORP's product. What's $SMALLCORP going to do
here?
It could sue them, but that will fail. Suing is a lengthy process that costs
a lot of money. It's money $SMALLCORP cannot have in this scenario (because
by the scenario's definition they haven't even recouped their investment
yet, let alone saved some money for a rainy day), and they can't try to
borrow against future income because if they lose the suit there won't be
any. In fact, because $BIG_COMPANY has a massive patent portfolio and you
can't swing a dead cat around a server room without hitting a few dozen
patents ("A system and method for testing server robustness against furred
Felidae?"), so $BIG_COMPANY will countersue and gobble up $SMALLCORP for
free.
In fact, a likely course for $BIG_COMPANY's strategy is not so much to
imitate $SMALLCORP, but instead to just sic the patent researchers on the
project, find a list of patents to sue $SMALLCORP with, and call in the
lawyers. As a practical matter $BIG_COMPANY will probably offer $SMALLCORP a
reasonable (but relatively lowball) buyout, which $SMALLCORP takes because
they know how bad the alternative could get.
Reform could fix quite a bit in that hypothetical story, but even if its
highly unlikely $BIG_COMPANY's portfolio can be used to (counter)sue,
there's still the issue of suing costing a lot of time and money. Some sort
of hypothetical streamlined, cheap, and quick system to decide such cases is
a pipe dream; any such argument will need to show, at length, how such a
mythical system would work.
Say it with me, folks: No software patents is the lesser evil.
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