I spoke on a panel last week at the Silicon Flatirons Telecommunications Program titled “Re-examining The Patent System.” My panel was the last one and came after a few hours of stimulating discussion about the problems with patents, the problems with patent reform, and the reason our government is struggling so much with what to do.
When I was at MIT in the 1980’s, copyright and patents were just starting to be a major issue in the personal computer software business. I vividly remember attending a lecture in one of my classes by the general counsel of Lotus who was suing Borland for copyright infringement between Quattro Pro and Lotus 1–2–3. This was around the same time that Apple vs. Microsoft / Xerox vs. Apple lawsuits appeared, as well as the nonsense Ashton-Tate vs. Fox Software lawsuit. Forget about patents - this was about copyright!
Some of the research I did when I was a doctoral student at MIT was around the sources of innovation in the software industry. In the late 1980’s, the three primary mechanisms for protecting innovation were copyright, patents, and trade secrets. Copyrights (as evidenced by the legal action above) was the most active area and I – among many others - thought that copyrights were a problematic way to fundamentally protect software innovation, especially around look and feel (which was all the rage at the time.) Of course, with the widespread emergence of the GPL and open source, the dynamics of software copyright have changed radically in the past decade, which is likely part of the reason the focus has shifted to patents.
I personally think software patents are an abomination. My simple suggestion on the panel was to simply abolish them entirely. There was a lot of discussion around patent reform and whether we should consider having different patent rules for different industries. We all agreed this was impossible – it was already hard enough to manage a single standard in the US - even if we could get all the various lobbyists to shut up for a while and let the government figure out a set of rules. However, everyone agreed that the fundamental notion of a patent – that the invention needed to be novel and non-obvious – was at the root of the problem in software.
I’ve skimmed hundreds of software patents in the last decade (and have read a number of them in detail.) I’ve been involved in four patent lawsuits and a number of “threats” by other parties. I’ve had many patents granted to companies I’ve been an investor in. I’ve been involved in patent discussions in every M&A transaction I’ve ever been involved in. I’ve spent more time than I care to on conference calls with lawyers talking about patent issues. I’ve always wanted to take a shower after I finished thinking about, discussing, or deciding how to deal with something with regard to a software patent.
I’ll pause for a second, take a deep breath, and remind you that I’m only talking about software patents. I don’t feel qualified to talk about non-software patents. However, we you consider the thought that a patent has to be both novel AND non-obvious (e.g. “the claimed subject matter cannot be obvious to someone else skilled in the technical field of invention”), 99% of all software patents should be denied immediately. I’ve been in several situations where either I or my business partner at the time (Dave Jilk) had created prior art a decade earlier that – if the patent that I was defending against ever went anywhere – would have been used to invalidate the patent.
When I made the assertion that we should simply abolish software patents entirely, I noticed a lot of lawyers heads moving vertically up and down. I took this as a good sign, especially since a number of them had gray hair (and a few were on the earlier panels and sounded very intelligent and experienced, especially for lawyers.)
After wrestling with software patents for the past 15 years, I’ve concluded that there simply is no middle ground. If we continue on the path we are on, patents will continue to increase in their overall expense to the system, everyone will feel compelled to continue to apply for as many (and as broad) patents as possible, if only for defensive reasons (one of Fred’s VC Cliche’s of the Week was “Patents are like nuclear bombs, you just got to have some.”) Let’s take a page from geopolitical warfare and focus on global disarmament, rather than mutually assured destruction.
Posted in: PatentsCOMMENTS (11)
Brad:
patents seem especially flawed for early-stage companies. I'm curious to know what kinds of non-patent barriers to entry that you've found to be most effective for early-stage startups. Anyway, I've taken a brief stab at this here:
http://andrewbfife.blogspot.com/2006/04/barriers-to-entry-patents-non-patent.html
...but would love to get your insights on non-patent barriers.
-Andrew
Awesome - thanks fot the link to great Fred quote and post from the past.
I am conflicted but agree with you on software but have been on physical products side where it hurt to see
posted about it at www.lindzon.blogspot.com
Brad,
I think you're 100% right about it being a great idea to get rid of software patents. They do nothing but harm the causes of innovation and value-creation in the software industry.
I think there's a strong case to be made that software patents are fundamentally different to other types of patent. One key difference is that requires almost zero investment to come up with patentable software "inventions". This has led us to the current situation where it's easy (cost-effective) for: a) major players (e.g. Microsoft, IBM, Apple) to create IP landscapes that are about as easy to navigate as a minefield; and b) the long tail of small players to get a few patents each.
All of which means that: if you write a piece of software of any complexity you're almost certain to be infringing *someone's* IP; and major players have unfair advantages over small players. It's a ridiculuous situation, given that almost all software patents simply should not have been issued due to so many being entirely obvious in nature.
I'll be very impressed if the major players in the industry can be persuaded lobby for abolishment of software patents. I'm not sure it'll happen though. Turkeys tend not to vote for Christmas.
Bravo Brad! Headaches, money, and time all wasted on ridiculous patents. It's kind of like bad divorces, the only winners are the attorneys.
In my point of view software writing is translation.
Translating from human language in to machine language.
You simply can't get patents on it. It blocks any inovation if you stop software writers to use the same sentences. where will it stops, can you have a patent on a simple dot :S
I agree 95% for all the reasons stated above. But the 5% (maybe1-2%) of patents that are filed with real inventions are the only way bootstrappers can get any edge over fancy VC funded "management teams". I think you'd eliminate some innovation without patent protection.
I hate patent-squatters as much as everyone else but abolishing it will only stifle the next upstart in a garage�.and possibly encourage deep-pocketed companies to steal inventions
I'm not a software guy and it's likely the "patent game" is a bit different for each vertical. In my industry protecting intellectual property with a patent is the only way to compete with the deep pockets of more established companies. For instance, my eventual patents will allow me to either compete with Nike/Reebok et al on an even playing field or encourage them to make me a sweet offer - it's truly a must have "offensive" weapon for my arsenal. FWIW I don�t think the patent office was prepared for the technology explosion and never came up with a good way to handle software rights. In fact, do most examiners know how to read high level code well enough to make astute decisions on what�s new and innovative? Anyhow, in the end it will all come down to who pays the lobbyists the most to legally bribe the politicians....
Abolish them? They are property though, there was investment in them, the state simply cannot take your property without extreme circumstances. Reform is the only possible option.
It's easier to be against patents when you don't have any, if you actually invent new stuff why shouldn't you protect it and try to profit from it? Really the lack of patents shifts the power to any larger and richer organization who can out market and throw more resources at a problem. Now 17 years seems like a fairly long time in software, maybe the thing to do is shorten their life span. In favor of abollition, the thing to do would be to start acquiring patents and then granting completely free rights to them, like the GPL or form a patent pool and all members share their patents, convince some patent holders to do that and then once the pool is of a certain size, stop enforcing those patents all together. Some how you'd have to make it worth while to get people to give them up. Maybe a bounty or something, I don't see anyone shelling out cash for patents and then giving rights away for free. A group of companies all join a pool and the pay to buy up patents and then give any one that wants it a perpetual free ride on any of the patents they bought. $15k a patent, across the board?
I can also list of some specific examples of a technology being patented and then because of that patent better ideas were came up with to avoid it.
I look at it like free software. There are users and providers, there tend to be a lot more users of it than providers. Providers seem to have a lot more rights and control than the users do. The providers and can the rules when they want to (I think you even posted about this happening a few months back) How many of your companies use free software and then how many give source code away and actually contribute back real code? Not throw away crap, but actual software. If I invent somethng new or I'm shrewed enough to make that claim and actually kick it through the system (and it's not free, I spent about $12k out of pocket to get a patent) then why shouldn't I get something for it?
Look at Tivo, they are a non-player in consumer electronics in all practical ways. They will be lucky to get bought or not die facing Sony, JVC, etc. They pioneered a field and they staying around because of patents, software patents.
John Anonymous: Whatever patent you filed for, someone had thought of it before - at least something 98% like it. More than likely they had even wrote a paper on it before you.
With that proof your patent would be worthless, if they applied for a patent and proved that they thought of it first - according to US patent law.
Software is more ART than science. Any developer knows this. And you cant patent ART. Therefore you shouldnt be able to patent software.
Brad is entirely correct.
Novelty and non-obviousness are trivial general clauses, it's like saying we want a good patents but no evil ones. Obviousness is a small test barrier that is totally unusable to bear the entire load of patent examination. But in the US it is the only instrument left. A red herring.
You have to talk about subject matter and technical character. Else patent reform discussions are meaningless and the patent institutions know that.
There are currently over 325,000 registered software patents. The number of new patents has increased 10% annually over the past decade and jumped 40% in 2006 with more than 40,000 new software patents approved. Software patents take complex technical subjects and complicate them further with legal gobbledygook. This makes it very challenging to determine whether a technology has violated a single patent, and nearly impossible to check hundreds of thousands of patents.
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