Empirical Evidence of Why Software Patents Are Bad (or Good) – Part 2

In January, I posted Part 1 of an empirical approach to determining whether software patents are bad (or good). The essay was sent to me by John Funk, founder of Evergreen Innovation Partners. This is part 2 (please read part 1 first if you are interested.) 

As a quick reminder – the premise of the essay is: What if we attempted to craft a social policy hypothesis that would defend the existence of software patents, and then we went about creating an experiment that would attempt to disprove that hypothesis?

Now, what if we created an interview / survey methodology that talked to hundreds of software companies, ranging from large ones (e.g. IBM, Microsoft, Google) to ones as small as small as angel-backed or bootstrapped startups. We define a methodology that attempts to understand whether the basis for the rationale of software patents (1: public disclosure accelerates innovation because future invention rests on prior patent disclosures) or (2: conferring a patent monopoly will encourage innovation that otherwise would not occur due to perceived risk/return) has empirical evidence to demonstrate social policy success.

It would seem that addressing (1:) is easy: For example:

  • Does they company have a company policy of reviewing software patents as part of their innovation process?
  • Does the company have a policy of NOT reviewing software patents for reasons of IP contamination and willful infringement?
  • Can the company point to any meaningful software product in their portfolio that intentionally leverages another’s prior patent?

Addressing (2:) may be a little more difficult to accomplish. Some questions might include: 

  • Can the company point to any product or product category that they are not present in because of patent “blocking”?
  • Can the company point to some product they intend to launch when a particular patent expires?
  • Does the company ever watch any patents for expiration dates?

Evidence of any of these would show a business model that is like pharma vs. generics where when a product goes “off patent” there is more competition (and, therefore, the existence of monopoly profits generated during the term of the patent – which would prove the social policy is actually working.)

I’ll post part 3 sometime later this week.

  • Steve Murchie

    My conclusion from being inside one of the big software guys (not stated policy, just the impression), was that the industry giants use patents as a stockpile of weapons to effect a pact of ‘mutually assured destruction’ in the event of a breakdown in “friendly” competition. Consider that the big guys are almost always the ones being sued for patent infringement rather than the ones suing, and that major brouhahas are often resolved amicably in ways that make us outsiders scratch our heads, I have to think it’s due to some big-stick diplomacy.

  • Thanks for exploring this idea. I’m very interested to see where this series goes.

  • Brad, the following link to a post on Techdirt seems relevant to this discussion: