Brad's Books and Organizations

Books

Books

Organizations

Organizations

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.

« swipe left for tags/categories

swipe right to go back »

The Momentum Behind Software Patent Reform Is Building

Comments (13)

I’m an abolitionist.  I believe software patents should be abolished.  I’ve started pounding the drum about this and am delighted to hear as many positive responses to my plea as I have.  While a few people argue with me about the validity of software patents, most nod their heads up and down in agreement with me.  I get plenty of skeptical looks when I say "software patents should be abolished" (as in – c’mon Brad, be realistic), but a guy needs to have goals, right?

Jason Haislmaier – an IP lawyer at Holme, Roberts & Owen – has written an relevant post titled So, Just How Patentable is Software Anyway?  While Congress spins its wheels over patent report, the Court of Appeals for the Federal Circuit (CAFC) is holding an en banc review for the In Re Bilski case.  Jason does a nice job of covering the implications and the potential outcomes of this.  He also tosses in some fun court gossip that one of the judges is hinting that there will be significant discussion about the patentability of computer software that will go all the way to the Supreme Court.

These are potentially important events in the troubled history of software patents.

  • CK

    Patent Reform is Revenge of the Jocks.

    The way Intel (with Sales Jock CEO) is talking, you would think that the patent Nerds are ruling over us like a rentier class in pre-revolutionary France.

    But if you check the Forbes Billionaires list, it seems nicely balanced between Tech Nerds (Dyson vacuums, Page and Brin), Finance Nerds (Buffett), and Sales Jocks (Blackstone's Schwarzman, Wal-Mart's Walton, etc.).

    In other words, Nathan Myrvold's view of the subject is entirely correct. Inventors in the service service deserve the same protections as inventors in the farming and manufacturing sectors. That means business method patents and software patents.

    • http://www.feld.com Brad Feld

      Well – count me in as one of the Nerds voting for eliminating software patents. No one has ever mistaken me for a jock.

      Your assertion that Myrvold's view is correct isn't substantiated by anything. Myrvold has his own broad agenda which is multi-faceted. I'm not going to begin to try to fathom all of the pieces of it, nor am I willing to take the assertion at face value that since “service sector inventors” should be protected that means “business method and software patents” are valid forms of protection. There are numerous other forms of protection for inventors in the service sector and – when you actually get under the dynamics of how patents are actually applied to business method / software patents – and the corresponding economic dynamics, one can quickly draw a different opinion.

      This isn't a debate that gets won with quick / pithy assertions. The sounds bites – which I know I am participating in (e.g. “abolish software patents”) need real research and data to substantiate them. There are an increasing number of nerds – like me – working on this.

      • CK

        If the issue is more nuanced than either of our sound bites would suggest, let me suggest another possible solution: In Illinois, the previous governor declared an indefinite moratorium on executions. His reasoning was that the death penalty might be appropriate in the future, but that the number of innocents found on death row showed that the government (court system) was not yet up to the job.

        So a moratorium on software patents until the patent office is up to the job. You get nearly the same result but avoid offending property rights absolutists such as me.

        • http://www.feld.com Brad Feld

          A moratorium is certainly a useful short term solution is stalling the problem. However, I don't believe the PTO will ever be up for the job because of the fundamental invalidity of software patents in the first place.

          One of the secondary effects of software patents that stifles innovation is the uncertainty surrounding the actual content, grant, and legitimacy of software patents. I'd be concerned that a moratorium actually exacerbates this problem.

  • PRoales

    Is there a Anti-Software-Patent PAC I could donate to?

    • http://www.feld.com Brad Feld

      Look for a formal announcement of the End Software Patents Coalition in the next few weeks.

      • Todd Sampson

        Fantastic news Brad. I am glad someone is taking the lead on this.

        The best idea I had was to have people donate on an end-patents website and have a bot submit patents for random tech buzz-words using the money raised. Once the patent office got 10-15 years behind they would have to declare software patent bankruptcy… Or so I hoped.

  • Tim Stephens

    Brad – I don't get the rationale behind this anti-software patent movement. Most, if not all, of the examples cited here do not pass the time tested three prong test for patentability. The three prongs are new, non-obvious, and useful. The examples I have read on your blog fail the non-obvious test – in other words, the software examples would have been obvious to those with average skill in the art. Other examples fail the new test – there has been prior art to make patentability void.

    My point is, if something passes the three tests, what should it matter if the idea is physcial or virtual (mechanical versus software)? What is it about software that makes the new, non-obvious, and useful test void by those of you in the anti-software patent movement?

    • http://www.feld.com Brad Feld

      Tim – I think you just made the case! Virtually all of the software patents that get issues don't pass these tests. Unfortunately, once the bad patent gets issued, it's a nightmare in both cost and time to invalidate it.

      There are a different solutions to this – the most aggressive is just to eliminate software patents altogether. I argue that eliminating software patents would enhance innovation in the software industry – whereas the current friction created by software patents today actually slows down innovation. I give you the open source movement and a handy example of this.

      • Steve Bergstein

        So, if, in some ideal world, the PTO were actually up to the job of evaluating software patents by applying the three-prong test, virtually all current software patents would be invalidated. Would it be reasonable in this hypothetical world to have software patents?

  • Jonathan Chauncey

    because eventually someone will come up with something “new” that might not be obvious to start with and is useful simply because the technology is new. I mean 30 years ago a progress bar would absolutely fall under these “prongs”. But why should someone be able to patent a progress bar?

  • http://www.venturedeal.com Don Jones

    An ex senior Yahoo executive – from year's ago – once said flatly “If it's on the Internet, you can't protect it via patents.”

  • http://jeremystein.tumblr.com jeremy

    if you look at it from a practical standpoint– well, its only practical for a large company.

    if youre a startup, writing a patent is time consuming and can be expensive. needless to say, you won't know if you officially have a patent until several years later. having an actual patent doesnt mean anything– it has to hold up in court. if youre a startup, a large company will purposely infringe to dry up your cash, and distract you.

  • Jonathan Chauncey

    because eventually someone will come up with something "new" that might not be obvious to start with and is useful simply because the technology is new. I mean 30 years ago a progress bar would absolutely fall under these "prongs". But why should someone be able to patent a progress bar?

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

    Well – count me in as one of the Nerds voting for eliminating software patents. No one has ever mistaken me for a jock.

    Your assertion that Myrvold's view is correct isn't substantiated by anything. Myrvold has his own broad agenda which is multi-faceted. I'm not going to begin to try to fathom all of the pieces of it, nor am I willing to take the assertion at face value that since "service sector inventors" should be protected that means "business method and software patents" are valid forms of protection. There are numerous other forms of protection for inventors in the service sector and – when you actually get under the dynamics of how patents are actually applied to business method / software patents – and the corresponding economic dynamics, one can quickly draw a different opinion.

    This isn't a debate that gets won with quick / pithy assertions. The sounds bites – which I know I am participating in (e.g. "abolish software patents") need real research and data to substantiate them. There are an increasing number of nerds – like me – working on this.

  • PRoales

    Is there a Anti-Software-Patent PAC I could donate to?

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

    Look for a formal announcement of the End Software Patents Coalition in the next few weeks.

  • Don Jones

    An ex senior Yahoo executive – from year's ago – once said flatly "If it's on the Internet, you can't protect it via patents."

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

    Tim – I think you just made the case! Virtually all of the software patents that get issues don't pass these tests. Unfortunately, once the bad patent gets issued, it's a nightmare in both cost and time to invalidate it.

    There are a different solutions to this – the most aggressive is just to eliminate software patents altogether. I argue that eliminating software patents would enhance innovation in the software industry – whereas the current friction created by software patents today actually slows down innovation. I give you the open source movement and a handy example of this.

  • CK

    Patent Reform is Revenge of the Jocks.

    The way Intel (with Sales Jock CEO) is talking, you would think that the patent Nerds are ruling over us like a rentier class in pre-revolutionary France.

    But if you check the Forbes Billionaires list, it seems nicely balanced between Tech Nerds (Dyson vacuums, Page and Brin), Finance Nerds (Buffett), and Sales Jocks (Blackstone's Schwarzman, Wal-Mart's Walton, etc.).

    In other words, Nathan Myrvold's view of the subject is entirely correct. Inventors in the service service deserve the same protections as inventors in the farming and manufacturing sectors. That means business method patents and software patents.

  • jeremy

    if you look at it from a practical standpoint– well, its only practical for a large company.

    if youre a startup, writing a patent is time consuming and can be expensive. needless to say, you won't know if you officially have a patent until several years later. having an actual patent doesnt mean anything– it has to hold up in court. if youre a startup, a large company will purposely infringe to dry up your cash, and distract you.

  • CK

    If the issue is more nuanced than either of our sound bites would suggest, let me suggest another possible solution: In Illinois, the previous governor declared an indefinite moratorium on executions. His reasoning was that the death penalty might be appropriate in the future, but that the number of innocents found on death row showed that the government (court system) was not yet up to the job.

    So a moratorium on software patents until the patent office is up to the job. You get nearly the same result but avoid offending property rights absolutists such as me.

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

    A moratorium is certainly a useful short term solution is stalling the problem. However, I don't believe the PTO will ever be up for the job because of the fundamental invalidity of software patents in the first place.

    One of the secondary effects of software patents that stifles innovation is the uncertainty surrounding the actual content, grant, and legitimacy of software patents. I'd be concerned that a moratorium actually exacerbates this problem.

  • Tim Stephens

    Brad – I don't get the rationale behind this anti-software patent movement. Most, if not all, of the examples cited here do not pass the time tested three prong test for patentability. The three prongs are new, non-obvious, and useful. The examples I have read on your blog fail the non-obvious test – in other words, the software examples would have been obvious to those with average skill in the art. Other examples fail the new test – there has been prior art to make patentability void.

    My point is, if something passes the three tests, what should it matter if the idea is physcial or virtual (mechanical versus software)? What is it about software that makes the new, non-obvious, and useful test void by those of you in the anti-software patent movement?

  • http://intensedebate.com/people/todd_sampso5628 todd_sampso5628

    Fantastic news Brad. I am glad someone is taking the lead on this.

    The best idea I had was to have people donate on an end-patents website and have a bot submit patents for random tech buzz-words using the money raised. Once the patent office got 10-15 years behind they would have to declare software patent bankruptcy… Or so I hoped.

  • http://intensedebate.com/people/steve_bergs2127 steve_bergs2127

    So, if, in some ideal world, the PTO were actually up to the job of evaluating software patents by applying the three-prong test, virtually all current software patents would be invalidated. Would it be reasonable in this hypothetical world to have software patents?

Build something great with me