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.