If I were a patent troll, which universal human right would I start abusing next?
Patents and humanitarian activity (and how patents can kill humanitarian activity) have been covered on this blog before (see the SMOS project). I am in a slightly cynical mood, so I will now pretend to be a strategist for a patent troll (a “non-practicing entity”). How could I best abuse the world?
Note: I am NOT talking about the way big companies (like, say, Monsanto) are perhaps strong-arming the patent system. Compared to me, Monsanto are the good guys. They at least have at some point put some money into some R&D, and produce something. All I plan to do is to exploit quirks in the patent system.
I would want my target industries to have three key criteria:
- They have little or no experience with IPR, and none with trolls. The best attack is when the target has no idea what hit him.
- They produce things which every person needs to have. Ideally, things that are considered human rights. That way, the targets have no real option except to accede to my demands (or else break IP law).
- (Optional): Some type of vendor lock-in. This means that the customer is tied to one specific vendor for all his needs. Many people realize that the vendor can then abuse the customer at will. Most people do not realize that a troll can then abuse both the vendor and the customer at will.
An nice target list is provided by the UN’s Universal Declaration of Human Rights, especially Articles 25-26. There are many potential attacks, but here I will focus only on a few novel ideas.
- Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
- Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Food / clean water
This is where I would strike, first and foremost, no hesitation. Water-purification technologies are the choicest target because they fulfill all key criteria (they are essential, people don’t expect attacks, and there are lock-ins). Some target markets (for example oil-rich desert countries) are rich enough to provide considerable blackmail money.
Methods to create potable drinking water would be my number one focus. It is a high-tech activity, with serious companies doing serious R&D work. An overly broad patent (either created now, or bought from a suitable player, or an fire sale after a bankruptcy) could be a major block.
I would target companies close to a breakthrough, and file/buy a huge number patents around the same area. Here’s a secret: It doesn’t really matter whether or not the patents are truly valid. All one needs to do is to strike at a strategic moment, and announce that one has a hundred patents which company X is infringing. This is a typical troll strategy.
The strategic moment: the instant a major water-cleaning plant has started providing water to a large city (Dubai, Nairobi, Mumbai, Dhaka). Even a brief court injunction on the operation of a key water plant could be problematic to a whole city. The blackmail potential is very high.
(Normally, one would expect a reasonable government to act like India in the medicine case discussed below, and simply ignore the blackmail and the the injunction. However, consider an extremely poor and corrupt country with the leading elite fully tied to foreign interests… it might not do the sane thing).
Water distribution would be even more fruitful, since it is in practice impossible to set up a competing water and sewage network overnight. There is a definite vendor lock-in in that business. However, the technology is so simple that there is little IPR to abuse.
Medical care would be a lucrative area for attack, but… filing spurious patents is difficult in this area. The major drug manufacturers are well protected by patent thickets. There is also an active backlash against medical patents, which means that criterion 1 is no longer satisfied. Everyone is expecting attacks. For example, India is banning branded drugs. Governments and NGOS’s are already on their toes, unlike the water case. I would pass on this.
I would put communications in this category as well. I am not the only one; the ITU (the telecommunications branch of the United Nations) is waking up to the patent wars in the telecoms industry, and their effect on innovation (see for example here). This war was also addressed in our SMOS project.
The ITU initiative is largely an attack on patent trolls. A cynic might expect that since the big companies have deep pockets to affect the process, and governments have their own telecom industries to protect, the end result will be an even deeper monopoly on development by a few megacompanies, with no benefit for poor countries. Time will show.
In any case, while trolling the telecoms industry is currently all the rage, the competition is getting harsh, there is little chance for a surprise attack, and a serious backlash is likely. I would look elsewhere.
Motherhood and childhood
Childhood diarrhea is one of the worst killers in the world, and could largely be avoided by providing clean water and saline solution. A patent on a particular type of saline solution could provide interesting leverage to an utterly sociopathic troll. However, in practice it is relatively easy for medical professionals to work around the IPR by substituting slightly different components. Thus, while intriguing, the work-arounds make trolling difficult.
- Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
- Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
- Parents have a prior right to choose the kind of education that shall be given to their children.
Low-cost distance learning technologies are interesting, especially as they provide a very low-cost alternative in extremely poor countries. The best course of attack would be cases where a given company has achieved an effective lock-in on the overall technology and has created a walled garden.
A walled garden means that one company controls all aspects of the material: the hardware, the software, and the content. Apple is the best-known example of this strategy, followed perhaps by Microsoft and Google (whose lock-in does not extend fully to hardware though). The walled garden can create many type of problems for customers; for example, there have been cases where critically-needed applications have been pre-emptively deleted from the AppStore if Apple has feared litigation.
These companies have pockets deep enough to fight the trolls, but those same pockets can also bribe the trolls. I would frame the attack behind the scenes, making the problems appear to be the fault of the company, as in the AppStore case above. Since their brand names are absolutely crucial to them, they would be more likely to pay off (though of course they also have armies of lawyers. The balance is difficult).
A public-service note: attacks like this could be avoided by using open-source solutions, or at least by minimizing vendor lock-in. A sure way to create problems of this type is to accept a walled garden, however attractive it might look in the short run.
Am I serious? Yes and no.
No. If I actually wanted to do this, I wouldn’t write about it. Profit is made by keeping absolutely silent and working in the shadows.
Yes. The basic principles are valid. The exact sample cases I’ve suggested might or might not work. I have outlined some techniques for avoiding attacks of this type (most importantly avoiding walled gardens), but where there is money, there will be trolls.
Rest assured: there are people out there thinking precisely along these lines. Globally, masses of people are now being downsized who have the competence for this, families to feed, and negotiable moral values. (To be consistently cynical: I am among them. I could be good at this. We all like to think we’re on the side of the angels, but we’re not).
If someone has good ideas on how to protect the world against them (us?), I would appreciate hearing those ideas.