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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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Let’s Make Software Patents "Defensive Only"

Comments (8)

In my quest to abolish software patents, I’ve been pondering "short term approaches" since I doubt the Supreme Court is going to wave a magic wand and make my fantasies come true anytime soon.

I’ve been hearing about something lately that bothers me a lot.  More and more companies are paying engineers a bonus to file patents.  Not "get patents" – simply generate patent applications.  The intended consequence is an obvious one – companies get to file more patents.  The unintended consequence is a particularly nasty one – lots of shitty patents get filed and the PTO has to wade through that much more garbage.

A friend of mine – who recently was "paid to file a patent" said he considered requesting that – if granted – the patent only be used defensively.  I asked him why.  He responded that he felt conflicted and thinks a lot of his peers feel the same way.  He didn’t think the patent was particularly valuable, useful, or valid.  However, he was reluctant to turn down the bonus that he was getting for simply filing the patent.  He didn’t view it as a good use of his time (or of his company’s time or money), but he realized that the patent system is motivating his company to file as many patents as they can.  He has little expectation that the patent will be granted, but he was happy to get paid the bonus.

I asked him what would make him feel better.  He surprised me when he said "My company should agree to only use the patent defensively if it is granted."  I asked him if he thought this was a unique perspective and he said no – he thinks many experienced software engineers are skeptical of software patents.  While they are skeptical, they understand the battle going on right now and realize the value of ever increasingly large number of patents for defensive purposes.

Wouldn’t it be interesting if there was a grass roots movement of experienced software engineers around software patents for defensive purposes only.

  • Zeroth

    Hmm… its funny that the most interesting posts of yours have the least comments. Or at least, the most ethical/moral/”hippie” posts. Do you find that people seem to disrespect people that stick to unpopular morals? (Being against software patents would be an unpopular moral to have in the business world, I imagine.)

  • http://elliotross.wordpress.com Elliot Ross

    I don't particularly agree with any type of software “process” patents. If I had patented a “process for saving data to magnetic media” I could kill every business in the world by denying the ability to boot your computer, save a file or anything at all.

    I do not include true “engineering” software uses – such as say, software to “improve the calibration and timing of pace makers to reduce arrhythmia”

  • http://jeremystein.net jeremy

    brad,

    i just wrote a post about patents from a founders perspective: http://jeremystein.net/post/33864089

  • http://erikstuart.com Erik Stuart

    What's your (or the engineer's) mindset on what qualifies as “defensive use of a patent”? Is it (most conservatively) only using that patent to win in court as a defendant? … or does using patent X to counter-sue a competitor, who is threatening to sue you for infringing patent Y, count as “defensive use” of patent X?

    • http://www.feld.com Brad Feld

      I can’t speak for the engineer, but I count them both as defensive uses.

  • zoobab

    Defensive patent strategy is useless to fight trolls, which are a plague in the software industry. Make software not patentable and you do not have those problems.

  • Brett R. Jackson

    Brad,

    Why do you want to get rid of software patents? I am working on patenting some software for my Boulder, Colorado based marketing & advertising agency http://www.GenerationThinkTank.com

    Thank you. I look forward to hearing your response.

    Brett Jackson

    • http://www.feld.com Brad Feld

      I've written extensively about this on my blog. Just click through on the patents category or do a search on patents.

  • http://intensedebate.com/people/zeroth8105 zeroth8105

    Hmm… its funny that the most interesting posts of yours have the least comments. Or at least, the most ethical/moral/"hippie" posts. Do you find that people seem to disrespect people that stick to unpopular morals? (Being against software patents would be an unpopular moral to have in the business world, I imagine.)

  • Elliot Ross

    I don't particularly agree with any type of software "process" patents. If I had patented a "process for saving data to magnetic media" I could kill every business in the world by denying the ability to boot your computer, save a file or anything at all.

    I do not include true "engineering" software uses – such as say, software to "improve the calibration and timing of pace makers to reduce arrhythmia"

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

    I can’t speak for the engineer, but I count them both as defensive uses.

  • jeremy

    brad,

    i just wrote a post about patents from a founders perspective: http://jeremystein.net/post/33864089

  • Erik Stuart

    What's your (or the engineer's) mindset on what qualifies as "defensive use of a patent"? Is it (most conservatively) only using that patent to win in court as a defendant? … or does using patent X to counter-sue a competitor, who is threatening to sue you for infringing patent Y, count as "defensive use" of patent X?

  • zoobab

    Defensive patent strategy is useless to fight trolls, which are a plague in the software industry. Make software not patentable and you do not have those problems.

  • http://intensedebate.com/people/brett_r_ja22641 brett_r_ja22641

    Brad,

    Why do you want to get rid of software patents? I am working on patenting some software for my Boulder, Colorado based marketing & advertising agency http://www.GenerationThinkTank.com

    Thank you. I look forward to hearing your response.

    Brett Jackson

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

    I've written extensively about this on my blog. Just click through on the patents category or do a search on patents.

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