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Phenomenal Essay On Why Software Patents Are The Problem
If there is one thing you read today, go read Brad Burnham at Union Square Ventures excellent essay titled Software patents are the problem not the answer.
Several years ago when I first started saying things like “software patents are invalid constructs” or “software shouldn’t be able to be patented” or “software patents are a huge drag on innovation”, I was told by many people (lawyers, journalists, patent trolls, and other VCs) that while I might be right, no other venture capitalist would agree with me or support this position.
Several years ago my partner Jason Mendelson agreed and since then he’s become outspoken about his desire for the end of software patents. Some people said that was cheating since he’s one of my partners at Foundry Group, but I’m ok with getting people on board one person at a time. BTW – my other partners – Ryan McIntyre and Seth Levine – also strongly agree with this position.
Several months ago, Brad wrote a great essay titled We need an independent invention defense to minimize the damage of aggressive patent trolls. I’m good friends with Brad and his partner Fred Wilson and we’ve had a number of conversations about this over the past six months, including the creation of an ad-hoc group we are calling “Abolish Software Patents” (which is similar in structure to the group behind the Startup Visa Movement.
Today, Brad wrote Software patents are the problem not the answer in response to the New York Times article on Nathan’ Myhrvold’s firm Intellectual Ventures approach to creating “invention capital” which was a soft profile piece in response to Myhrvold’s HBR article The Big Idea: Funding Eureka!
Brad’s post is outstanding and mirrors my perspective on this. And – if you want some entertainment (and additional perspective on what’s really going on) go take a look at TechDirt’s post today titled Nathan Myhrvold’s Intellectual Ventures Using Over 1,000 Shell Companies To Hide Patent Shakedown.
This problem with software patents (and the patent system in general) is going to come to a head in the next year or two and I hope the venture capital industry and broader software / Internet entrepreneurial community can rally behind intelligent solutions to this problem.
Not cheating. When you first told me your position, I was still thinking like a lawyer, not a supporter of innovation.
Brad B never clearly stated what distinguished software patents. (The USPTO hasn't figured it out either.) He said software patents didn't cost millions of dollars to develop nor was the technology subject to approvals. But those statements are incorrect. Additionally many non-software patents didn't cost millions of dollars or were subject to approvals. He seems to accept other categories, but he doesn't define what he doesn't like.
Maybe there are more junk software patents than other patents. A question of degree, not kind. Big difference. If so, instead of wiping out the whole deal, why not work instead to find ways to blow up bad patents (software or others)? And improve ways of determining reasonable royalties.
Can a good "software" patent exist? If so, why would you want it not to?
Some examples to contemplate: (1) the RSA patents, which enabled Internet commerce among other things; (2) various GPS processing/monitoring (not hardware) patents, which help keep planes from crashing (accidentally); (3) early image compression patents, which enabled digital video. These patents were developed by staffs of many Ph.D. researchers who were dedicated for years to their research. Isn't that stuff okay?
JHS all those things are coverable via copyright.
To amplify – software patents don't just say "here is an algorithm for processing GPS data." Rather, they say, "the very idea of processing GPS data are belong to us."
Fascinating posts and discussion. From a communications standpoint, many of the companies — large and actually, not that large — which would benefit most from stopping IV and patent trolls have been cast as Evil Giants Threatening the Single Inventor,the lifeblood of American innovation. A major part of crossing the threshold from discussion of ridiculous software patents into true action will be changing the broader terms of that discussion so that those without an immediate axe to grind will feel free to get involved.
Nope. Patents and copyrights do different things, and pretty much none of the technology I listed can be protected sufficiently by copyrights. Did RSA, Garmin, Allied Signal, Honeywell, Bendix, and Compression Labs just not understand copyright?
Still wrong. Read the claims in any of the patents.
For more venture capitalists against software patents, see this (archived) PR that used to be hosted by MySQL (before they were acquired by Sun): http://web.archive.org/web/20070804233425/http://...
One of the signatories of the PR, Benchmark Capital, was the main investor in, a.o., eBay.
The proof is in the litigation. Lawyers, including my old lawyer for my first company, made a fortune threatening this kind of litigation.
They don't patent because they "understand" anything. They patent because they can.
They don't patent because they "understand" anything. They patent because they can.
And BTW recently my company recently received a threat of this very nature. It had nothing to do with the algorithm, just the idea it represents. The huge earthshaking idea? Being able to rate the content of a web page via a survey. Do you seriously think that is patentable?
I guess the USPTO thought that technology was patentable.
SHOULD it be patentable? Doesn't sound like it.
Plenty of bad patents are out there — obviously. That's why I like working on ways to blow up bad patents instead of throwing out the idea of patents altogether. Some new case law makes it much easier to blow up bad patents.
Patents are not the problem. BAD patents and meritless litigation are.
What was the number of the patent(s) that your company was threatened with? Maybe I can help invalidate the patent.
[...] from: Phenomenal Essay On Why Software Patents Are The Problem Tagged with: [ burnham-at-union, one-thing, patents, problem, problem-not, software, union, [...]
Our society through legislation gives certain monopolies to developers of intellectual property. To me, the only valid reason for doing so is a cost-benefit analysis. If we grant developer A a legal monopoly (patent, trademark, servicemark, copyright) for X years concerning idea B, then overall we will benefit more than if we do not.
Patents for inventing drugs are to me a good idea. Without patents, a lot less drugs would be invented and drugs are hugely expensive to develop (in part due to the FDA approval process). By allowing patents, a lot more drugs are invented and the benefit they provide vastly outweighs the extra prices we all pay because the drug manufacturer has a monopoly for X years.
When Brad says software patents are a bad idea, I think what he is really saying is, "On a cost-benefit basis, we would be better off if there was never a legal monopoly in the form of a patent for software." Although a few more good ideas might be generated, the benefit of those few ideas is much less than the harm caused by software patents. That is a position I agree with.
The problem is compounded by the fact that there is absolutely no doubt that the patent agents who work in the software department of the patent office are total absolute idiots, literally some of the dumbest people ever born. Is there a software patent they will not grant, no matter how blantantly obvious?
In addition to the stupidity of the patent office when it comes to granting patents, software ideas are in so many cases cumulative — standing on the shoulders of giants.
It makes no sense to try to fix the system, it is not fixable. It's better to simply abolish software patents (and business process patents), retroactively to the first one granted. Very little if any harm will occur and vast benefits will accrue.
As for the RSA and GPS algorithms, I am certain if RSA did not write these algorithms, someone else would. RSA can still make lots of money from its work without patent protection — almost any company would rather deal with the inventor directly, even if they have to pay a fee.
James Mitchell
http://www.jmitchell.me
There is a big debate about the fundamental patentability of software. If you recall, software patents didn’t emerge until post State Street and Bilski. One of the best books ever on this is Math You Can’t Use by Ben Klemens – well worth reading – http://www.amazon.com/Math-You-Cant-Use-Copyright...
I’m strongly in the camp that there is no such thing as a valid software patent. In addition, the whole idea that the RSA patents enabled Internet commerce is ludicrous in my book. It’s a nice assertion about the importance of the RSA patents, but Internet commerce would have happened just fine without them. I haven’t read the GPS patents so I don’t feel qualified to weigh in there but the image compression patents are another interesting case where there are actually huge issues surrounding their viability and – in some cases – strong assertions that they actually have slowed down innovation in some areas.
Follow-up discussion at http://www.feld.com/wp/archives/2010/02/sawyer-we... .
"As for the RSA and GPS algorithms, I am certain if RSA did not write these algorithms, someone else would."
Is that statement true for any invention, or do you just think that the RSA stuff is pretty obvious?
"RSA can still make lots of money from its work without patent protection — almost any company would rather deal with the inventor directly, even if they have to pay a fee. "
Don't understand. RSA were the inventors, and a royalty rate is a "fee".
In my experience, most companies hate to deal with inventors. They are crazy.
Brad,
Another great post on the problems of software patents. What's missing is a concrete plan for getting things changed – at its heart it's a *political* problem.
It's possible to get some fixes from the Supreme Court (the KSR decision was a step in the right direction), but ultimately any change has to be passed by Congress or rules changes need to be implemented by the PTO.
What would really help move the debate forward is not just suggestions on how to "fix" the "problem", but a realistic set of steps to pull together the political support to improve the situation: who the major players are, how their support can be obtained, and what compromise will build a coalition that is likely to gain majority support in Congress.
Agree. There’s a group of us that are starting to work more aggressively on this. It’s a similar approach to the one I’ve used with the Startup Visa project (see http://www.startupvisa.com).
How much would it cost?