Proposal: An Independent Inventor Defense Against Software Patents

Brad Burnham at Union Square Ventures put up a very important post last night titled We need an independent invention defense to minimize the damage of aggressive patent trolls.  His partner Fred Wilson echoed Brad’s thoughts on his blog with a post titled Why We Need An Independent Invention Defense.

Brad’s post starts out with the following:

“Almost a third of our portfolio is under attack by patent trolls. Is it possible that one third of the engineering teams in our portfolio unethically misappropriated technology from someone else and then made that the basis of their web services? No! That’s not what is happening. Our companies are driven by imaginative and innovative engineering teams that are focused on creating social value by bringing innovative new services to market.”

It’s a fantastic description of the fundamental problem with software patents.  For example:

“The problem is that the patent system has fallen way behind the pace of innovation, especially in information technology. Originally designed to protect the brilliant independent inventor of a better mousetrap, the patent system has been stretched to be applied to software. Software is a language and like any language, it can be very abstract. Everyone applying for a patent pays a lawyer to take their invention and render it into the broadest, most abstract language they can slip through the patent office. A mouse trap is a mouse trap, but a method of allowing one piece of software to talk to another (the generalized language often used to describe a software system) can be almost anything, and can, if approved, impact markets the original inventor could never even have imagined.”

Brad goes on to discuss the specific problem of patent trolls and proposes a solution to address this – that of an independent inventor defense.  If you’ve gotten this far, go read Brad’s full essay on the independent investor defense.

I’m extremely excited to see Brad and Fred come out so strongly against software patents.  I’ve been talking against this for a long time and I expect my rants against software patents are well known to any readers of this blog (if you aren’t familiar with them, feel free to indulge yourself if you are so inclined.)  But this is the first time that I’m aware that any of my peers – other than my partners at Foundry Group – have come out so strongly in public against software patents. 

I purposely limit my “special initiative” work and try to focus on a few things that I think will make a substantial difference in the world of software / Internet entrepreneurship (the domain that I’ve chosen to dedicate my professional life to.)  Right now I’m deep in the effort to get a Startup Visa created but have continued to pay attention to the software patent issue while looking for the right time to scale up an effort.

That time is now.  I just emailed with Brad and he’s game to lead a charge with me.  I saw tweets from several friends last night including Chris Sacca who knows this issue firsthand.  As with the Startup Visa there are plenty of other credible smart people who are putting real intellectual energy into this issue, such as the End Software Patents initiative and Wendy Seltzer, a well known researcher who is currently spending a year at Silicon Flatirons researching software patents and innovation (disclosure: I’m providing some of the funding for this initiative at Silicon Flatirons.) 

It’s now time to get the practitioners (entrepreneurs and investors in software innovation) to get organized around this.  If you are interested in helping out substantively, leave a comment on this blog with your email address as I start to get organized.

  • I'm in. Thanks for your leadership on this.

  • busy trying to get a company going, but I've long been incensed by this issue, so let me know how I can help

  • As a software developer I know I should care deeply about this issue…but I have to admit I have a big learning curve to overcome when it comes to patent law and such…still, I'm happy to pitch in wherever/however I can…just let me know!

  • I'm in

  • DaveJ

    – Would it make sense to wait until you see what happens with Bilski?

    – It seems to me that the issue with shifting the burden of proof to the patent holder is that it is tantamount to getting rid of patents. Seriously – it would become impossible to enforce a patent if you had the burden of proof for every infraction. This reality will not escape anyone's attention in the debate on the matter. So, wouldn't it make more sense to just try to get rid of them directly (just in software, perhaps)?

  • Ari S

    Brad, I spoke to Wendy a few weeks ago after you re-introduced us, and I'd be happy to help out in any other way I can as someone who deals with these issues from inside a law firm (for now).

  • I'm in. I'm a developer and view software patents as a drain on society and the single greatest threat to my profession.

  • Re: Bilski – While I might be pleasantly surprised, I don’t think Bilski is going to directly address software patents.  After reading the transcripts, it feels like it’s going to be limited to business method patents, which is a great first step.  But – I don’t see the value in waiting.

    Re: getting rid of them directly.  Yes – that’s the goal.  This is an intermediate proposal.  I like the way Brad Burnham has framed it – especially from a practitioners perspective.

  • I'm in. I've been on both sides of this issue: lawsuits from trolls, and filing a defensive patent or two. In the end I've concluded the current system is broken, though I still have a concern that we give inventors enough protection from pretators.

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  • Hey – Independent discovery is what copyright is all about. The difference in perspective to what patents do is that upon infringement the court makes up the claims of each work instead of someone writing patent claims independently of the other before they know each other.

    There is of sorts some difference on how blurred the idea border is around the claims, but that has frankly not been that well tested with copyright. It could be very much the same, think play = execution of work etc.

    I like the idea that has promoted with "Industrial copyright" rather than patents and I very much hope that Bilski puts and end to all abstract patents like most sw and biz-patents. I think the supreme court got lots of things right in its questions.

    jonas bosson

  • I'm in. I was involved in multiple predatory patent lawsuits at Vonage. None of them were from "the little guys." More than happy to help out however I can. I've had plenty of hands-on experience from multiple depositions to furious work-arounds.

  • jonas bosson
  • I'm in.

    Recent funding we received was contingent on applying for software patents so right now I am in the process of doing that even though I disagree with software patents, ironic.

    The patent system was set up when most people were farmers, now in the knowledge economy almost everyone is or can be an "inventor" and the system no longer functions to purpose, innovation is being stifled not encouraged.

  • Brad, I'd be interested in getting involved, though I do have some reservations about this approach. I'm down with the end goal: fixing the ridiculousness surrounding software patents and doing away with trolls. However, I think an independent inventor defense has got some issues.

    First off, the patent system exists with the assumption that independent inventors are subject to pre-existing patents. The idea is to create an incentive to be first. If you allow a complete independent inventor defense, you take away that incentive. Say you patent something in 1995, but by 2000 the overall state of the art has developed such that anyone could "independently" come up with your idea? You could argue "who cares" because the state of the art is moving forward, but overall I imagine the state of the art would slow down as people lose that incentive to be "first". Such a slow down in innovation can't be good, and while it might have a negligible effect on software (which arguably doesn't need patents anyway), it would have a detrimental effect in other areas.

    What I think is more important is to fix the way damages are calculated in patent cases. This would go a long way to reduce patent trolls by doing away with the huge incentives that currently exist to trolling. Right now damages are calculated based on the overall value of a final product, rather than by attempting to assess the incremental value that a patented innovation brings to a product. Damages reform is one of the proposals already floating in Congress in S. 515 / S. 610 / HR 1260. Perhaps one way to get started is to really push for this reform. I think it'll go a long way.

    Another huge issue is the quality of Software patents… I've got little doubt that so many issued software patents are just absolute garbage, but it takes a lot of money to get a court to determine that once they've issued. Not sure how you go about improving quality, but the post-grant review process in the pending reforms might very well be a good idea. Especially since there are clearly a lot of people interested in software patents who'd be willing to actively participate and make sure bad patents never get through.

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  • Happy to help in any way I can as well.

  • eddie walker

    This is a terrific point. An independent inventor defense risks throwing the baby out with the bathwater — sure, we might stem the software patent troll tide, but we also kill incentives to be first. And the patent system is founded upon the notion of incentivizing innovation by rewarding those who get there first with exclusive rights for a set period of time. Reform patent litigation, reform obviousness, reform PTO prior art rules, get Bilski decided the right way, and you will see things improve. But scuttling the entire foundation of the patent system has dires risks of blowback.

  • jpball

    Easy to say "I'm in," but I'm not sure what steps to personally take, so can I look to you Brad, Wendy, etal to provide guidance/organization. I have two clients currently engaged in the protracted process of negotiating with patent trolls, so I bring both experience and an unpleasant attitude.

  • With regret, I better keep writing software.

    But, as I write, what should I watch out for? Or, I don't understand Anatomy of a Software Patent Troll Attack 101.

    Or when a Web site goes live, what do the trolls do?

    Or suppose deep inside my server side code there is code for a faster way to do operation x or some code for math y to do better at solving problem z, now, what can a troll do, force any random Web site to lift their skirts, drop their panties, submit to a pelvic exam, and print out all their code and documentation, 'secret sauce' and all?

    Or are the trolls just limited to attacking what they see in the user interface?

    If they can only attack my user interface, then I'll keep it dirt simple, keep out anything novel until there's revenue enough to fight trolls, and keep it easy to change in case of an attack.

    I did a keyword search on trolls and didn't see anything that looked threatening; I saw nothing like the Union Square post. I have a high end lawyer, but to get his answer in this might cost me as much as another server. Also, maybe other readers would like to know.

  • I agree that the Supreme Court did an excellent job with their questions.  Let’s hope they do an equally excellent job with their opinion!

  • Great thoughts – I agree that Independent Inventor isn’t perfect for software patents, but it is a potentially very good solution.  It’s especially relevant in the context of the rapid advancement of state of the art especially when you line up the principle of non-obviousness and uniqueness against it.  I think the goal in this case would be to only apply this to software patents – not to patents in general.

  • DaveJ

    So, my point is that since getting rid of them is the goal, and you all are transparent about it, then in the debate on the matter the opponents will point this out, and you will have to defend the whole ball of wax (i.e., why should we get rid of software patents) rather than just the interim proposal. If you're going to have to defend / argue the whole case, why not just argue it and try to get it?

    If the interim step created a compromise/interim situation, that would be different. But it really doesn't. It makes software patents pretty much useless.

  • “Reforming obviousness” and the “Independent investor defense” are actually very symbiotic.  Brad Burnham does a really good job tying these together in his post.  I think it’s a really interesting proposal – in software – to link these two together.  I agree that it doesn’t work for a lot of other areas.  But my beef is not with the patent system in general – it’s with software patents.

  • I’ve got a core group put together and we’ll start working in a more focused way on this.  So – look to this blog for calls to action.  Thanks for “being in!”

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  • Jeff Judge

    I am happy to help in whatever way possible. My company has served by a patent troll as well for something as simple as receiving an HTTP POST via SMS gateway. Very silly stuff and drain on everyone.

  • Jeesh, I take a day away from reading your blog and you go from calling for action to "having a core group put together."

    Since I'm too late for the "core group" let me know how I can help otherwise.

    I have one unique bit in my background that may give me some added credibility: I'm the inventor for US Patent 6845316.

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  • I haven't had any problems with patents yet, but one day maybe I will, so it's good to know that someones fighting. Good luck with this! /Niclas @ TimeCenter

  • The core group – like the one that exists for the Startup Visa – is just to get stuff mobilized and focused.  It’s hugely helpful to have a starting list of folks that will engage (per this blog) – I need a much better crowdsource organizing principle for this than I had for Startup Visa.

  • There is a pretty good definition with plenty of links on  I’ve also written extensively about this in the Patents section of this blog.  And the End Software Patents site has a bunch of stuff on this, including a litany of lawsuits (very abbreviated list, but a good start).

  • Hey, I'm all in favor of the core group, I'm just bummed that I missed out on being part of it!

    Let me know what I can do to help!

  • Carl Forest

    You sound like a stooge for Google. It is well known that a group of large companies are pushing to get rid of software patents, and if they could, get rid of the ability to meaningfully enforce any patents. This group includes, Apple, Inc, Cisco Systems, Comcast, Dell, Google, Hewlett-Packard, Intel, Micron Technology, Microsoft, Palm, Symatec, Time Warner, Visa. These companies spend tens of millions of dollars every year on lobbyists, blogs, and other marketing tools in the software industry to spread the nonsense that patents are evil. I find it interesting that almost all these companies got big because they owned patents, but now, when they have lost their roots and are run by bureaucrats mostly interested in stock options and condos, suddenly patents have become bad.

  • Carl Forest

    The only reason why the United States remains the only remaining preserve for entrepreneurs and start-ups is the patent law. Did you ever hear of an Android, Google, Dell, Cisco, Symetrix, Particle Measuring Systems, Crocs, etc. etc. coming out or Europe, Japan, or any other country. That is because in all other countries big money has successfully diluted the patent system until it has no force. Do you really thing Google would be buying up all those companies unless there were patents behind the companies? If fools like you get what you are pushing for, all technology in this country will be owned by giant conglomerates, just like in Europe and Japan.

    Your “independent inventorship” is a myth. I have worked with start-ups for 35 years, and it is incredible how fast a new idea spreads within an industry group. Mention a product you are working on at a meeting of ten people, and suddenly each of the ten people thinks of an application and is convinced she or he is an independent inventor. It human nature.

  • Carl Forest

    I work daily with angel investors and venture firms. All investors with experience in the field will not touch a start-up unless the startup has patent applications. Most people in software start-ups have a goal of getting bought out by a larger company or doing an IPO. This only happens if you have patents. Do you think one of those big companies would buy you out if they could “independently” invent the technology and take it over?

    I think one of your issues may be that you do not understand how patent law works. Most beginners think that the patent law rewards people for inventing. Not precisely. The patent law rewards people for publishing how their technology works. The idea is to build a large library of published technology so others can build on what came before. The biggest gold mine in the world is the United States Patent and Trademark Office database. If you want to know how to do something, just go search the database and you will see how to get started. This database is the biggest gold mine of software technology in the world, and it would not exist except for the patent law.

  • If you're going to try and call Brad out for being a stooge for Google (which he is clearly not, perhaps you should do a bit of research), I would suggest you include in your list of credentials that you are a patent attorney, no?

    In my opinion, I side with Brad. I don't believe software patents help us as a society. I also agree, however, that software without patents can in many cases lose their value, primarily because there is no defense against the giant patent monster that the patent industry has itself created. Thus why not try and fix the underlying issues with the system rather than to defend the current system which in part has justification only as it relates to the reality it has created?

    This is an very complex issue and I believe will require both sides to recognize the relative strengths and weaknesses of their own argument and propose solutions that takes a balanced view and understanding into account.

  • Hey Brad, remember me, the guy w/the Green/Red Chrome bag? I'd be glad to lend my expertise as a lawyer/lobbyist/budding entrepreneur-who's-had-to-throw-money-down for-a-provisional to this initiative. We met in your office to discuss the Founders Visa project some weeks back.

  • It's about time. The system is indeed broken. I've seen first-hand exactly the phenomenon described in the post above. I'm not a stooge for anybody, not an attorney, but an owner of a small software company with 40-some employees and no outside investors that has had to deal with patent trolls several times. What the post is describing is happening.

  • Thanks.

    I followed your URLs, and more. I had some ideas.

    Like you said, now I'm ready for a shower!

  • Your assertion that the list of companies below “got big because they owned patents” is simply not credible.  I’ll offer Microsoft up as an example.  Their FIRST software patent was issued in 1988 and they only has three patents in 1990.  There are many controversies of Microsoft and patents, but the argument that “they succeed because of patents” is absurd.

    Also, regarding your comment that I sound like a stooge for Google – I’d encourage you to better understand my background.  I invest in software and Internet companies – I’ve been involved in around 300 investment since 1994 (prior to that I was a software entrepreneur).  Many of the companies I’ve invested in have been granted software patents and I’ve been involved in a number of patent suits, most of which were ultimately settled for $1 and a non-revenue based cross-licensing agreement – e.g. the only people that benefited were the lawyers.

  • Re: ’The only reason the US remains the remaining preserve for entrepreneurs and start-ups is the patent law” is another absurd statement.  I’ll use Google as an example here.  Google has acquired two companies that I’m an investor in (FeedBurner and Postini).  In the case of FeedBurner, I don’t think the company had any granted patents.  In the case of Postini, they had some patents, but they weren’t a material part of the deal since Postini was the market leader in the segment, profitable, and growing quickly. Many of the companies Google has acquired have been in business less than three years – no long enough to even be granted a patent under today’s system.  Plus, Google’s success is a function of trade secrets, not patents.

    Re: Independent investorship” is a myth.  You can’t patent the idea (presumably you know that well).  The “application” is merely the “idea”.  The interesting thing to talk about is the implementation of the idea (e.g. the underlying source code) and – in this case, any software developer knows there are many different ways to implement an idea.

  • Re: your assertion that “all investors with experience will not touch a startup unless the startup has patent applications” is completely false.  I’ve made many investments – both as the first VC or angel investor – as well as a follow on VC or angel investor – where patents are never discussed.  I’ve been involved in over 50 acquisitions of companies that I’ve been an investor in – patents rarely come into play.  Now – I only invest in software / Internet companies so that’s the domain I’m talking about.  But – in this domain – your core assertion is false.

    Re: understanding how patent law works.  I understand it very well having both studied it as a graduate student at MIT Sloan School under Eric von Hippel as well as spent substantial time in the past decade working with a variety of folks in academic, including the CU Boulder Silicon Flatirons program as well as serving on the advisory board for the Berkeley Center for Law and Technology (their patent study group). 

    In addition, many software developers that I know readily admit that there is little to no value in the USPTO patent filings.

  • You wrote:

    "Do you think one of those big companies would buy you out if they could 'independently' invent the technology and take it over?"

    Mostly they can't "independently invent": Reasons are organizational, technical, etc. E.g., a CEO might sponsor novel work, and otherwise the management chain just will not. Even the 'research group' won't.

    Problem's fundamental, needs too much 'field crossing'.

    You wrote:

    "The biggest gold mine in the world is the United States Patent and Trademark Office database."

    I have some favorite 'gold mines' — class notes from my favorite Ph.D. courses, etc. Patents? Never heard of anyone who got anything; 99 44/100% mud and gravel where all the gold is just 'prior art' anyway.

    'Prior art'? Uh, there's a big reason the US supports math, physical science, and engineering so well in the 24 or so top research universities: Can't get ahead of it.

    For software, I prefer just trade secret protection: If it's on a server, then everyone else should f'get about it. If ship it, then have a license agreement not to decompile, etc. It it's visible as in a user interface, then that's not obscure enough for any legal protection. Same for 'business processes'.

    If someone else wants to reinvent the 'secret sauce' in my server side code, then 'go for it, guys; lots of luck — you'll need it'. For essentially anyone in CS or 'infotech', you'll be "digging in the wrong place", way wrong place.

    For your devotion to the USPTO, where did you get that really strong funny stuff Legal Nonsense Magic Love Potion No. 9? Consider going cold turkey.

  • I'll help as much as I can. My experience in this regard is limited, but a perfect example came across my desk today. One of our customers is being harassed by a Chicago based company who feels they own the patent to those little feedback links at the bottom of everyone's website. To be more specific, they claim to have patented any feedback collection associated with a web page.

    This type of thing has to stop. In this case the offending organization is largely considered to be a reputable firm! It's such an amazingly bad practice, it's unenforceable, frustratingly annoying and ultimately self-destructive.

  • Super – and yes – that’s a perfect example of the nonsense we are dealing with.

  • Dave

    I don't think you have the foggiest idea what you're talking about. You might, if you were a little nobody and had to endure a few years of mindless rejection by an examiner that is given about two minutes to read all your source material and the carefully worded application you paid a fortune for the best attorneys to prepare, an examiner who thinks a diesel engine and a hypodermic syringe are equivalent because they both employ a piston in their construction.

  • Dave

    The truth is, there has never been a worse time to acquire patent protection. While dimwitted out-of-work so called software developers blame all their troubles on trolls, and the liars who gang up and say "oh, we could have thought of that!"….this is the absolutely worse time EVER to attempt to get a patent.
    Think of a tall sandwich. Patents are one slice. The next slice is everyone who says "we need innovations", then reject anything that is new and different. Then there's the extreme prejudice of support given to anyone in the Bay area, and the "us against them" mentality if breeds. And the grinding day-to-day generation of funds to support continued development and other expenses such as packaging, lawyers, broadband expense, food to eat, etc. And all the while knowing some big jackass company out there with revenues in the billions will stomp on you and take everything you have in a heartbeat, then go to court and bury you with testimony they thought of it back, somewhere, if only they could find the evidence. Then come here one morning and read the same toady chimes about patents. What the hell.

  • Carl, you're a troll. I've raised money and sold companies without patents multiple times.

    I've also written tons of software and not once used the USPTO for inspiration. No one does except lawyers looking for prey.

  • What's ironic are the Google ads on this page about companies wanting to help the reader with his/her Patent applications 🙂

    Here's a story about a German independent XML software developer/vendor and his experience with the so called "no software patents" in Europe –

  • Yes – Google Ad Irony is so entertaining!  Thanks for the link to the story – very useful.

  • patenthitman

    Speaking of patent troll… I'd like to suggest a defense to patent trolls and frivolous patent lawsuits!

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