Software Patent Absurdity

As long time readers of this blog know, I’m strongly against software patents.  Succinctly, I think they are (a) invalid constructs, (b) totally unnecessary, and (c) a massive tax on and retardant of innovation.

More and more of my VC brethren are beginning to come out publicly against them as are many extremely well respected long time software innovators.  So I was amazed to start hearing a statistic being thrown around that 76% of Venture Capitalist Believe that Patents are Important.  My partner Jason Mendelson dug in, figured out what was going on, and wrote a very important post titled 76% of Venture Capitalists Believe that Patents are Important (NOT!) explaining that it’s a totally invalid conclusion from a recent study.

In additional “c’mon guys, software patents are invalid” news, there’s a great short movie that was supported by the Free Software Foundation called Patent Absurdity.  It explores the case of software patents and the history of judicial activism that led to their rise, and the harm being done to software developers and the wider economy.  


The film is based on a series of interviews conducted during the Supreme Court’s review of in re Bilski (which I attended in person) — a case that could have profound implications for the patenting of software.  It’s really good and worth 29 minutes of your life.

  • Philsugar

    Just confirms my belief when people pop off statistics.

    I always say back: 76.3% of statistics are flat out wrong.

    The retort usually is what can I see that?

    You pulled yours out first, lets see the backup.

    • Yup.  It’s really a bummer how the headlines become the story rather than the fact that the headlines have nothing to do with the study!  People just make shit up.

    • Yup.  It’s really a bummer how the headlines become the story rather than the fact that the headlines have nothing to do with the study!  People just make shit up.

  • Thanks for sharing, i learned from it.
    Maybe this is why many internet consumer product, you try to find an IP and leverage it by a pending patent …

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  • Thanks for this article. Now I have a good answer to "Have you patented your idea?" 🙂

    Very interesting video. Read through the Supreme Court arguments as well.

  • Michael Smith

    Thanks Brad, I learned a lot. I'm a little shocked by the situation, though I admit that I'm not working in the software industry. For a complex issue I thought the filmmakers handled the material very well. It certainly kept my attention. Can I suggest you get this into the hands of as many policy people as possible. Probably a DVD in the post, or maybe one of those 9 track tapes–if those Freeny patents have expired yet!


  • Using cases like this, as well as large corporate tactics as arguments against patents puts small companies and individuals in an unfair comparison. I have authored patents for algorithms associated with scientific instrumentation. The instruments themselves are simple, but the real creative innovation is in the software. it is what makes the physical product a reality. I don't see why this type of intellectual property should not be valued and protected. A patent can allow for an inventor to finance a worthwhile idea in ways that limit the need for excessive credit and compromise of ideals, which is a goal that many of us have.

    • Bill Mosby

      Patents for algorithms? Seriously?

  • OldNews

    Brad, another post on patents where you’re all rant and no research? Take a look at this great post by a patent blogger noting the negative impact Bilski is already having in the industry.

    Maybe you could get a post together on what programmers should do when an erroneous litigation suit comes their way.

    • When you say “all rant and no research”, did you read my partner Jason’s post which deconstructs some “very poorly done research” and explains why the conclusions drawn are invalid?  That is the meat of the post.  I’m not sure why you call this “a rant”.

      I’m not sure what you mean by “negative impact Bilski is already having in the industry”.  When I read through the summaries, a number of the business method patents are being held as unpatentable (good in my view) but their continues to be ambiguity around software patents (as in Versata v Sun and Accenture v Guidewire).

      Unfortunately, if you are a programmer and an erroneous litigation suit comes your way, your first move should be to immediately contact an experienced (and usually expensive) patent lawyer to defend you.

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  • Brad not just software, pharma, telecom, plenty of affected industries – see excerpts from my upcoming book The New Polymath

    The problem is big companies blame trolls but in some ways they are worse in gaming the system to extend their patent duration or reach.

  • The issue isn't really with patents, software patents are good to a point though. If you have the abuses that go on now with the patents then yes you will have problems. Many GUI's that are similar to other programs can result in a lawsuit which is a big problem. Apple is an interesting case cause a lot of what they use for their software is open source software that is all put together.

  • Great 30 minute docu. I've heard of the Hedge Hogs using patents as a way to make money… seriously… this is stifling creativity… I'm sure Beethoven would agree that software patents are just as ridiculous as patents for music! Interesting enough is another perspective from Chris Andersen on his concept of FREE (worth reading).

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  • michael
  • Interesting commentary about statistics – as a former science graduate student, I understand this phenomenon well! Scientists spin just as well as everyone else!
    As regards IP and entrepreneurship/small business, this blog… on the MASSCHALLENGE webpage adds an interesting perspective. It discusses the pros and cons of keeping your ideas secret; I think Tim Rowe's comments are particularly applicable to software. As a former IP attorney now working for the MassChallenge startup business competition, I am very interested in these issues. If anyone has good ideas for an event or workshop on these issues for our entrepreneurs, let me know!

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