The failure of the Roberts court to deliver clarity on patents in Bilski vs. Kappos has opened the floodgates for patent litigation, and the chief "victim" is Google.
Every rival with an axe to grind has sued the company over its Android system, claiming to have invented parts of it. They have also sued each other. Some of these suits were filed in the "rocket docket" of East Texas, which has been notoriously friendly to plaintiffs. Other suits were filed in the home towns of the plaintiffs.
The most serious of these suits is that of Oracle, because as Florian Mueller of FOSSPatents notes it's not just a patent claim. It's also a copyright suit.
Rather than distributing the GPL version of Java, which would have allowed companies wide latitude to tinker with "Android intellectual property", Google tried to maintain control of the code base by distributing Oracle's version without permission, Mueller writes. As in, "it's open but it's ours."
If that's the case Google could be liable for billions-and-billions of dollars in damages.
What critics like Ed Burnette really fear, however, is something more fundamental. They fear an end to the kind of innovation and competition Android represents.
Throughout the history of computing there has been a dynamic tension between companies that got to a solution first and those which sought to compete. Forty years ago this involved "plug-compatible" competitors to IBM mainframes. (That's one of the leaders of that revolution, Gene Amdahl, to the left.) Thirty years ago it involved "compatible" versions of PC-DOS, often put out by Japanese companies.
The effect of such competition was to reduce monopoly rents, to lower prices generally, and to grow markets IBM (in this case) sought to monopolize. IBM was hurt, but the market was helped, on both the buyer and seller side.
All this happened, however, before the present patent and copyright regimes emerged in the 1990s. The purpose of those regimes was to prevent wholesale reproduction of identical copies by thieves, made possible by computers and the Internet. Carve-outs were created designed to protect innovation, and the Bilski case was designed to see where they were, how far they extended, but (again) the court refused to do its job.
Legislative help will not come. Both U.S. parties are currently in the hands of copyright and patent extremists, supported by industry contributions, and no one in power seems to understand what's really at stake.
What's at stake is the principle that innovation is driven by competition.
Patents and copyrights were defined by the Founders as "monopolies." The intent of Article I, Section 8, where this power is described, is to spur innovation and creation. But as the U.S. economy has become more-and-more dependent on these monopoly rights, we've forgotten this intention. We've forgotten that our first manufacturers were copying British techniques, and that we ignored international copyright conventions until we gained a positive balance-of-payments on creativity.
What's being threatened here is simply American irrelevance. We're becoming what Great Britain tried to be in Samuel Slater's time, a country that tries to feed its grandchildren on the rights given its grandfathers. China is becoming what we were, a dynamic economy filled with entrepreneurial spirit, tearing us down in the lab while we tear ourselves down in court.
Just as no mere wall will really protect our economy from the competition of foreign workers, so no legal wall will ever fully protect us from foreign competition. And it's not the President or the Congress that needs to be convinced of this. It's the companies now busy suing each other across America over the competition our system fostered routinely until software patents and the Digital Millenium Copyright Act came into being.
Mr. Ellison, Mr. Jobs, Mr. Ballmer, it's you who have helped build this wall.
And you need to find a way to tear it down.
