Tuesday, May 20, 2014

U.S. patent reform movement lacks strategic leadership, fails to leverage the Internet

Approximately ten years ago I became an anti-software patent activist. I ran a Europe-wide campaign in 17 languages (not the first one in Europe to advocate the abolition of software patents, but it was forceful enough for me to win the European Campaigner of the Year award from the Economist Group that went to Austrian-born Governor Schwarzenegger two years later). Meanwhile I've done my first couple of patent filings and intend to do more, and there's no way I would return to anti-patent campaigning (I was already done with that in 2006). I do, however, believe that some serious reform is needed in the U.S., and in Europe there's a risk of very negative side effects of what would be a good thing per se (a more unified and less expensive European patent system). In this post I want to share my observations on why the U.S. patent reform effort is apparently on the verge of defeat (though these things can sometimes change overnight in politics).

[Update on May 21] Sen. Leahy, whose commitment to reform is questionable, has taken the reform bill off the Senate Judiciary Committee agenda, at least for now. [/Update]

When my brothers in arms and I were fighting the patent establishment in Europe, Twitter didn't exist, nor did anyone outside of Harvard University know Facebook. We used mailing lists and Wikis, and to a lesser degree conventional discussion forums, for communication and coordination. Even with those limited tools, we were able to build serious pressure on EU policy-makers over the Internet. Many websites had anti-software-patent banners, some on an ongoing basis, others just during "web demos" ahead of key decisions.

There was a Europe-wide community of anti-software-patent activists. A few of its members were active on a daily basis, and others just from time to time. There was a grassroots network that was able to mobilize people very quickly and effectively to take action -- and a pretty significant number of them were small business owners, who obviously had less time available for this effort than students but were more important to politicians. I'm not aware of anything like that in the U.S., where there's no shortage of professionally-designed websites by lobby groups (all of which look more or less the same) -- in that regard, we had some shortcomings -- but there is no community of activists. Just a bunch of lobbying entities.

As long as it's using the very same tools as its opponents, the U.S. patent reform movement should not be surprised about the current stalemate. The pro-patent camp also has money to spend on web designers and lobbyists. It may have even more money available because the pro-patent camp has a more centralized structure. So what you get is a bunch of lobby group websites that all look very similar.

Ten years ago, large companies like Google were unwilling to lend any financial support to critics of the patent system. Nowadays, companies like Google, Facebook and Twitter, but even certain hardware makers such as Cisco, pour money into patent reform initiatives. But they won't be able to solve the problem by trying to outspend those who oppose meaningful reform. They won't win unless they realize that the most valuable currency in politics is not money: at the end of the day it's all about voters.

Many victims of patent trolling have indeed contacted U.S. politicians. And this has had an effect, which is noticeable when politicians speak at hearings. But you can get only so far with advocacy. There will be politicians, such as apparently certain Senate Democrats, who are beholden to the patent system and/or large corporations supporting it. There's no way you can convince them because they don't even want to understand what's wrong with the system. They are beholden to trial lawyers and certain corporations.

That's where more of the same won't help. It's where you have to become truly combative and play hardball in order to break the resistance. And to do that, you must fight both smart and hard. Your movement must also be effective as a pressure group to bring about serious change. Once you've figured out a politician will never be on your side, you must make him or her pay a political price for it. You want his party base to be so outraged that he or she will worry about this having a potential effect on the next primary or general election. Obviously, patent policy is not the kind of subject that can decide an election at any level on its own. But it can be one of various factors, and a very vocal group that can mobilize its supporters effectively will appear stronger than it may be in numbers.

The U.S. patent reform effort is too conventional, too predictable, too unimaginative. It's playing the game by rules that favor its opponents instead of changing the rules and bringing to bear its strength, which is that there's a far greater number of people who are unhappy with the state of the patent system than people who would actively support it.

The pressure group that started the European fight against software patents, the Foundation for a Free Information Infrastructure (FFII), sometimes stepped over the line, but overshooting a little bit occasionally is better than running an anemic, stolid campaign like the push for U.S. patent reform. The FFII attacked politicians who were firmly on the other side. It maintained Wiki pages on which it documented the pro-software-patent activities and statements by those politicians. It published and dissected statements, speeches, and letters those politicians sent to voters, just to explain to people what those politicians really said and did. This really had politicians concerned. Many politicians and their staffers kept track of what the FFII wrote about them, and sometimes even called up the FFII to request edits. Those politicians (and their staffers) were concerned that this information could influence the way that their peers, journalists, friends, neighbors, and especially their voters viewed them.

Apparently the U.S. patent reform movement knows very well who the obstructors of reform are. But it's not enough to put the blame on unnamed Senate Democrats. You have to name and shame them. You have to publish and dissect their statements and explain how those politicians harm Main Street businesses and consumers. You have to show how they act against the public interest only because it means more money in the trial lawyers' pockets. You have to expose them as the friends of patent trolls that they are. You won't convince them that way, but they may proceed with greater caution and, ideally, at some point give up their resistance to reform because they realize the price is too high.

In politics, the enemy of your enemy is your friend. In Europe, we had entrepreneurs as well as Attac activists. In the U.S., the patent reform movement should think about who the enemies of their enemies -- the Senate Democrats who oppose reform -- are. For example, many of the people who promote patent reform may be left of the political center, but the small business owners who are affected by patent trolling are usually not. In any event, if certain Senate Democrats oppose the public interest in patent reform, why doesn't the patent reform movement find a way to get, for example, Rush Limbaugh and his relatively new Young Conservatives website to talk about it? Or Glenn Beck? They reach large audiences. It may be possible to get them interested in a story of Senate Democrats acting against Main Street interests, especially if there is some well-researched material available on the Internet that exposes the friends of the trolls.

Obviously, the kinds of conventional lobby groups that are members of the Main Street Patents Coalition, such as the American Hotel & Lodging Association or the National Association of Federal Credit Unions, can't play the name-and-shame game. Even the Electronic Frontier Foundation, though some of its positions on IP are very extreme, wouldn't want to do that. Those kinds of groups need to maintain good relations with politicians all the time. And patent reform, while important, is only one of many things they're interested in, so they can't burn bridges.

That said, those traditional lobby groups could lend logistical and, if structured intelligently, also financial support to activists who are willing to spend time on this, whose exclusive political focus would be on patent reform and who would be willing to break the rules of D.C. lobbying in order to win.

Without financial support from the likes of Google, Cisco and Facebook, we broke pretty much all the rules of Brussels lobbying, and while we didn't achieve the abolition of software patents in Europe (they continue to be granted and enforced on a daily basis), we created a situation in which both camps agreed that it was best to have no new EU-wide law on software patentability. For the first and I believe still the only time in EU history, the European Parliament threw out a bill at a second reading, i.e., without any negotiations with the EU Council (the other legislative body in the EU). Against the rules, we made EU history.

I can't imagine that it wouldn't be possible to form such an activist community in the U.S., especially with the dynamics of today's social media. There are many people out there who would love to make a contribution to patent reform. There should be an online community that they can join, and which will organize online campaigns as well as local meetings. A place where they can exchange ideas and educate themselves.

The European anti-software patent movement consisted not only but to quite some extent of free and open source software activists. Many of them came across as overly ideological, but there were also academics and small business owners. Discussions were sometimes difficult, but usually fruitful. It should be possible to have similar dynamics in the U.S. as well.

All volunteer organizations face one fundamental problem: there will always be more people who want to offer their views than people who want to do the grunt work. But if a community is large enough, and if it has great leadership, then it can get a lot done.

Run-of-the-mill lobbying and grassroots activism can be a powerful combination. Sometimes grassroots activism is created organically, such as in Europe. But companies with a strategic interest in connection with a key policy issue can also find and (indirectly) support individuals who have the skills and the energy to create and organize such a movement.

If the U.S. patent reform movement had first-rate strategic leadership, then its leaders would have studied in detail how European anti-software patent activists achieved a historic rejection of a legislative proposal. They would also have tried to learn as much as possible from the recent legislative process in New Zealand. Of course, America is different. The topics are also different: in the U.S. the reform movement is too cowardly to speak out against software patents at the level of subject matter (admittedly this is harder to do in the U.S. than elsewhere, but the positions of the U.S. reform movement are way too soft to begin with and then get diluted in the political process, which is why nothing meaningful is achieved in the end). So the U.S. patent reform movement just uses trolls as a pretext for litigation reform, while the political processes in Europe and New Zealand were about patent-eligible subject matter. There's also a fundamental difference between the U.S. two-party system and the multi-party EU landscape. Still, if the masterminds of the U.S. patent reform initiative had been serious about winning, they would have done some thorough research on what worked and what didn't work elsewhere, in order to then determine which of those lessons learned abroad would also help them in their country. It's quite clear that they didn't do that. All they came up with was the very same kind of D.C. lobbying that the supporters of the current state of the patent system can also do (and possibly do even better). Apparently this isn't working.

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