I’ve written about OSS (Open Source Software) and Free OSS (FOSS) many times. This post in particular though, outlines a strategy I believe to be of merit for helping topple some of the juggernauts that currently pollute the landscape by trolling small companies and even individuals with patent trolling.

What is patent trolling?

Put simply, it’s a heavy handed technique of using patents that an entity owns to clobber the works of others, without actually exercising the patent, by using it for something useful. It’s the economic equivalent of throwing a temper tantrum, but it has real, serious implications.

Why do companies do it?

Patent trolling has a strong success record, because of the poor patent laws (particularly the U.S.). A companies first priority is to make money, to enforce their bottom line, and so it makes good business sense to use patent trolling rather than risk the endeavor of Research & Development. Why take a chance on something that may fail, and have no real return on investment when you can just run around beating others over the head because they reached the same conclusion you did, at a different time?

Some companies, Microsoft being a good example, even go so far as devoting teams of researchers in the act of developing products for the sole purpose of trolling, without ever bring them to market.

What can be done about it?

This is a tougher question. Generally speaking, patent wars are fought with time and money – neither of which individuals or small businesses have a lot of. So in the spirit of the Law of Increasing Poverty, the rich get richer, and the poor get poorer. This is a terrible reality, but it has some truth. However, I think there is a ray of light at the end of this dark tunnel.

The ray of light: Prior Art

Prior Art is a legal term that denotes any invention or piece of work that relates to an invention/patent that already exists, and is made public. See Prior Art on Wikipedia for details

In, ‘The America Invents Act: Fighting Patent Trolls With “Prior Art”’ the author discuss some of the newly gained freedoms granted by the recently passed America Invents Act, which puts some more control back into the hands of smaller companies and individuals.

One of the more notable parts of this article is this nugget:

Fortunately, creating prior art ties in with many typical work tasks, such as participating in open source projects, running a development blog and publishing online documentation. How you track software releases and fix bugs can also be a low-pain way to publish prior art.

This is a great boon — the fact that good software development practices are also strategies to battle patent trolls, should be a guiding light to anyone interested in creating something.

It’s easier to win by creating FOSS

There is one more reason why creating Free, Open Source Software is the best strategy, from this perspective: as a person or individual, it’s nearly impossible to win a legal battle with a large corporation. The best way to win a fight is to prevent it from happening, and making Free, Open Source Software is surely a good step towards prevention. The other positive is that you’re much more likely to become famous because of it!

If that’s not enough, just remember: people love free stuff.