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Hi, I’m Brad Feld, a managing director at the Foundry Group who lives in Boulder, Colorado. I invest in software and Internet companies around the US, run marathons and read a lot.

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Patent Holders Against Software Patents

Comments (3)

As my Quixotic adventure for abolishing software patents continues, I’m starting to come across essays, examples, and suggestions from software engineers that support and confirm my point of view.

Terry Gold of Gold Systems pointed me to an article from Art Reisman, the CEO / CTO at APConnections.  Terry is on Art’s advisory board.

Let’s start with Art’s recommendation

Patents should be allowed for:

  • 1) devices with mechanical components
  • 2) physical compounds that can be weighed on a scale.

Patents should never be awarded to:

  • 1) Ideas
  • 2) processes, recipes, software programs

I believe that these already have other appropriate means of protection (trade secrets, copyrights).

Perfect.  I strongly agree.  Art’s article in ExtremeTech is titled Analysis: Confessions of a Patent Holder starts with his fundamental problems with the Verizon patent that has caused Vonage so much difficulty.

The problem with this patent, like many others in a misguided flood of new filings, is that it describes an obvious process to solve a naturally occurring problem. Translating a phone number into an IP address must be accomplished by any provider offering Voice Over IP. Not only is it a common problem, it is a relatively simple problem to solve with multiple natural solutions — not that that was apparently made clear to the jury. So simple, a first-year computer science student could do it as a weekend homework assignment.

Art is also transparent about the "bigco patent manufacturing machine" problem.

In my time at major telco providers, all of the patents I was privy to were taken out for something that occurred in the natural course of finding a solution to a larger problem. I was never comfortable with being a part of this game, but a previous employer of mine provided an eager legal team to help in the process, and paid $1,000 to any engineer who won a patent. I had colleagues that were virtual patent mills. Patents sound impressive on a resume, so why not?

Art warms my heart with a nice punchline: "It’s like hate and war: nothing productive can come of it."

The Vonage decision is the ultimate example of a small player eating into the revenues of a larger player, and the underhanded techniques that the larger player can impose with an unchecked patent library. Vonage was brash, bold and constantly in the face of the big players trying to get market share. Although I give them little chance of competing in the long run, I hope that everyone at Verizon who was involved in winning this case realizes that their tactics undermine our ability to compete as a society and may backfire against them someday. It’s like hate and war: nothing productive can come of it.

  • John Ball

    As a friend (lawyer) is fond of saying; “bizoptly.”

    Efforts to compete should be on the strength of continuous innovation and process improvement.

  • http://www.pactix.com D. C. Toedt

    Art Reisman takes too narrow a view. When he talks about “… an obvious process to solve a naturally occurring problem,” he may be forgetting that sometimes the “inventive step” lies primarily in figuring out just what the problem is. A classic example was the discovery that common peptic ulcers are caused by a bacterium and can be easily treated with inexpensive antibiotics. That discovery was so “obvious” (not) that it earned its Australian discoverers the Nobel Prize in Medicine a couple of years ago, not least because the medical community was almost unanimously dismissive of the idea until the data proved the discoverers right. There's no principled reason for the patent system to discriminate against inventors like this, whose contribution consisted of successfully identifying the root of a problem that had long eluded everyone else in the field.

    Mr. Reisman's real beef appears to be that too many patents should not have been granted for obviousness reasons. That's a different issue requiring a different solution. The Court of Appeals for the Federal Circuit (which has jurisdiction over all patent appeals) used to have a reputation for having too-lax a view of what constituted a non-obvious invention, and for being far too ready to overturn patent examiners' obviousness rejections. Recently, the U.S. Supreme Court rejected the Federal Circuit's view (rightly, IMHO) and directed that a more-demanding analysis of non-obviousness be used. Quite possibly as a result, patent examiners are said to be getting more aggressive in making obviousness rejections. In time, that may go a long way toward alleviating the problem of bogus patents.

    If it isn't obvious (pardon the expression), I used to be a practicing software patent attorney, and am a named co-inventor of two software-system patents by a former client.

  • Tim Stephens

    While I agree that the examples you provided on software patents are frivolous, I strongly and respectfully disagree with the position of universally abolishing patents on software in general. In the manufacturing industry, buyers spend 30% of their resources waiting for prices on custom tooling components they designed. Likewise, the sellers spend 30% of their resources estimating prices. This results in a dollar per minute for each the buyer and seller for designs and prices.

    This industry has struggled for decades to find a way to automate the designs and the prices. I have spent every ounce of energy, every waking moment, and every penny to my name to solve this problem for a $50 billion market.

    Five years later, I solve the problem. From a web browser, the buyer can answer questions about the tool, and our PATENT PENDING SOFTWARE designs the component, determines how to manufacture the component, estimates the price, and gives the buyer the ability to buy online realtime from a standard web browser. The seller simply makes parts, and not price estimates. We earn a percentage of the selling price for automating the transaction.

    Millions of dollars have been spent by major companies attempting to create software to do what I described, and the best they have come up with is RFQ web portals that simply make fax machines obsolete.

    So me, the little guy that has risked and sacrificed all resources available to me, needs patent protection to prevent the big guys from attempting to replicate what we have done.

    My utility patent is not on an idea or recipe – it is on the intelligence we create – the digital DNA – to solve the problem.

    I realize that patents are only enforceable and valid when they are adjudicated, which is not cheap. But, I would rather have this as an insurance policy to protect the intellectual property against the big guys for as long as I can – at least until we reach critical mass.

  • D. C. Toedt

    Art Reisman takes too narrow a view. When he talks about "… an obvious process to solve a naturally occurring problem," he may be forgetting that sometimes the "inventive step" lies primarily in figuring out just what the problem is. A classic example was the discovery that common peptic ulcers are caused by a bacterium and can be easily treated with inexpensive antibiotics. That discovery was so "obvious" (not) that it earned its Australian discoverers the Nobel Prize in Medicine a couple of years ago, not least because the medical community was almost unanimously dismissive of the idea until the data proved the discoverers right. There's no principled reason for the patent system to discriminate against inventors like this, whose contribution consisted of successfully identifying the root of a problem that had long eluded everyone else in the field.

    Mr. Reisman's real beef appears to be that too many patents should not have been granted for obviousness reasons. That's a different issue requiring a different solution. The Court of Appeals for the Federal Circuit (which has jurisdiction over all patent appeals) used to have a reputation for having too-lax a view of what constituted a non-obvious invention, and for being far too ready to overturn patent examiners' obviousness rejections. Recently, the U.S. Supreme Court rejected the Federal Circuit's view (rightly, IMHO) and directed that a more-demanding analysis of non-obviousness be used. Quite possibly as a result, patent examiners are said to be getting more aggressive in making obviousness rejections. In time, that may go a long way toward alleviating the problem of bogus patents.

    If it isn't obvious (pardon the expression), I used to be a practicing software patent attorney, and am a named co-inventor of two software-system patents by a former client.

  • http://intensedebate.com/people/john_ball3930 john_ball3930

    As a friend (lawyer) is fond of saying; "bizoptly."

    Efforts to compete should be on the strength of continuous innovation and process improvement.

  • Tim Stephens

    While I agree that the examples you provided on software patents are frivolous, I strongly and respectfully disagree with the position of universally abolishing patents on software in general. In the manufacturing industry, buyers spend 30% of their resources waiting for prices on custom tooling components they designed. Likewise, the sellers spend 30% of their resources estimating prices. This results in a dollar per minute for each the buyer and seller for designs and prices.

    This industry has struggled for decades to find a way to automate the designs and the prices. I have spent every ounce of energy, every waking moment, and every penny to my name to solve this problem for a $50 billion market.

    Five years later, I solve the problem. From a web browser, the buyer can answer questions about the tool, and our PATENT PENDING SOFTWARE designs the component, determines how to manufacture the component, estimates the price, and gives the buyer the ability to buy online realtime from a standard web browser. The seller simply makes parts, and not price estimates. We earn a percentage of the selling price for automating the transaction.

    Millions of dollars have been spent by major companies attempting to create software to do what I described, and the best they have come up with is RFQ web portals that simply make fax machines obsolete.

    So me, the little guy that has risked and sacrificed all resources available to me, needs patent protection to prevent the big guys from attempting to replicate what we have done.

    My utility patent is not on an idea or recipe – it is on the intelligence we create – the digital DNA – to solve the problem.

    I realize that patents are only enforceable and valid when they are adjudicated, which is not cheap. But, I would rather have this as an insurance policy to protect the intellectual property against the big guys for as long as I can – at least until we reach critical mass.

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