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Anticompetitive usage
The effect of both of these is to invert the intent of the Copyright Clause of the U. S. Constitution, which allows the granting of copyrights and patents "to promote the Progress of Science and useful Arts." Rather than promoting
progress, software patents actually provide a way to inhibit progress by equipping companies with a powerful, unavoidable
stealth weapon with which to frustrate their competitors and chill competitive innovation. Consider some examples:
Software patents are thus bad news for most innovators in the software industry. The Electronic Frontier Foundation (EFF) has an excellent summary illustration of the problem.
I'm reminded of a case back in my days at Sun. Kodak was first an early investor in Sun, then a customer. But goodwill vaporized in 2004 when Kodak sued Sun for patent infringement. It wasn't just Sun. With its business starting to fail in the heat of competition from a digital camera market it had foreseen but failed to exploit, Kodak used a patent obtained from Wang to pursue every maker of object-oriented technology in the computer industry. Kodak forced out-of-court settlements in most cases (including, eventually, Sun), but the money did it no good.
Once a declining company becomes a patent troll, it's a sign that the ability of individuals to use human values to overcome reptilian corporate instincts has ended. Kodak lost any credibility with technology peers, and to my eyes at least the rest of its slide into chapter 11 was inevitable. So too with Yahoo, which is the Kodak of social media.
Software industry players build defenses against all this. They construct formidable patent shields, create patent pools like OIN, buy patent portfolios from others as Google has been doing, and more. Of course, the temptation to turn to the dark side and make money from what was once a defense is strong. But most companies just use their portfolios as a defensive measure.
Open source and patents
So what about open source communities? Cuban's hatred of software patents is common in the open source community, too. It's
not that open source projects are opposed to innovation -- indeed, we're in a golden age of open source innovation. The problem is that open source software is defenseless against the anticompetitive abuse of patents.