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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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Innovating Against Software Patents

Comments (30)

Last week, Microsoft sued Salesforce.com claiming infringement of 9 software patents. This comes shortly after Nokia sued Apple who sued Nokia over software patents, and after Apple sued HTC who sued Apple over software patents.

As an example of the ridiculous nature of software patents, Microsoft’s claims cover user interface features, including a "system and method for providing and displaying a Web page having an embedded menu" and a "method and system for stacking toolbars in a computer display."

This explosion of litigation based on the patenting of software cannot be brushed-off as large corporations doing what they do, as almost every start-up software company is at some point being shaken down by software patent holders. It’s a massive tax on and retardant of innovation.

I’m promoting the film Patent Absurdity because I know it’s helping people understand the situation. It’s gratifying to hear that more than100,000 people have now viewed the film since it was released a month ago. But are the right people seeing it?

I don’t know, so I’ve decided to send a DVD of the movie in the postal mail to 200 people who you think would most benefit our cause by seeing the movie and hearing the views of a few venture capitalists. My friends at the End Software Patents campaign have started the list and are asking for your help to identify those people that need to be made aware of how the patent system is failing us.

Watch the film, share it with friends, and take a look over the list of people who should watch this film.

  • http://www.retailpromotons.com Adam Day

    Brad, remember Lotus 1-2-3, Word Perfect, Netscape. Oh yea a company called Microsoft basically bundled directly competitive products and crushed the competition. Not because they had a patent but because they had the competitive advantages of having a limitless supply of money, OS dominance within the market and a established distribution network. Innovation is not spurred on by market dominant companies but by smaller, agile, passionate companies who see market opportunity and are willing to take the risk to build better products. These companies deserve the property rights provided by a patent, a time limited right to exclude other more dominant companies from stealing their innovations. Property right is the fundamental foundation of a free capitalistic market. Without property rights there is no incentive for innovation. The merit of the MS case is debatable with respect to how the patents are being applied, the patents are not. MS has the most to gain by the destruction and weakening of the patent system as they are the dominant almost monopoly surely oligopoly software company. The courts will determine if MS has a case or just filing a harassing and frivolous suit. However, many smaller underfunded innovative companies that conduct due diligence as well as anyone else that wants the opportunity and chance at the American Dream with respect to IP are the ones that are going to get hurt in your efforts. Currently many larger well funded companies are now following the innovation and knocking off the check-in geo location based applications such as foursquare, gowalla, etc. . Hopefully foursquare or gowalla has filed the provisional patent on geo longitude latitude / mobile check-ins with respect to consumer engagement. As this would afford them the property right to exclude other companies from using their innovation and a chance at survival against the big well funded companies who don't care of they rip off innovation.

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

      Adam – I respectfully disagree with your assertions about the importance of software patents with regard to protecting innovation.  I’ve written extensively about this – basically, I don’t believe that software is a value construct to patent.  Seehttp://www.feld.com/wp/archives/category/patents< ... />

      • http://twitter.com/andyidsinga andy idsinga

        Question to Adam & Brad:
        If I'm a small, underfunded software company with a software patent on X , isn't filing suite against a large well funded potential infringer still going to be prohibitively expensive?

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

          Absolutely.

        • Jose_X

          >> If I'm a small, underfunded software company with a software patent on X , isn't filing suite against a large well funded potential infringer still going to be prohibitively expensive?

          And how about the many poor inventors with thousands of great ideas who cannot afford to take out any or very many patents (especially if they prefer to code software rather than write up patents and litigate or who see the whole patent system as backwards)? Their ideas are leveraged by the wealthier groups taking out the patents and then used against them and against everyone else.

          Aren't copyrights $0 and automatic? Why are we discriminating against the majority of inventors? Software, being so low cost to produce successfully (particularly because of Internet collaboration) means there are many inventors being spit upon by the system.

    • Jose_X

      >> As this would afford them the property right to exclude other companies from using their innovation and a chance at survival against the big well funded companies who don't care of they rip off innovation.

      So you agree that software patents should not be usable against small companies and individuals, since competition and collaboration is recognized to be superior to monopolies and since the real worry you (and perhaps some others) have is of being run over by very large companies with huge resources?

    • Jose_X

      >> Oh yea a company called Microsoft basically bundled directly competitive products and crushed the competition. Not because they had a patent but because they had the competitive advantages of having a limitless supply of money, OS dominance within the market and a established distribution network. Innovation is not spurred on by market dominant companies

      This is another great point you made. It shows we have problems in our system that still need fixing (and antitrust remedies of the past fell short).

      In particular, closed source software promote software monopolies very much because of the difficulties in interfacing well with a larger opponent who controls their side of the interface. Software is very complex. We aren't talking about screws and bolts.. except in that interoperability is key to fair competition and low prices.

      Unfortunately, patents won't solve Microsoft's (and others') monopoly abuses when we allow Microsoft (and other monopolists) to likewise take out patents. Why would we give monopolists access to more monopolies?

      Software patents stifle and hurt society and individual freedoms significantly; however, I would accept a patent system that gives out tens of thousands of long-duration monopoly subsidies *exclusively* to the little people and solely usable against the largest of players. [Note that in this system, if you aren't that large, you don't suffer much direct harm but neither gain any benefits.]

  • j r

    "My friends at the End Software Patents campaign have started the list and are asking for your help to identify those people that need to be made aware of how the patent system is failing us."

    I'd nominate Sir Menzies Campbell (www.mingcampbell.org.uk), Business Minister in the UK Coalition gov't.

    • Jose_X

      I think we should target people that are likely to be sympathetic and have huge audiences or can likely gain them. You never know who will hear the message and be inspired to do something really great. Remember that, as a special interest group, we are small and up against well-funded competition. We want to reach some legislators, but we should also focus on trying to get this message tied in to social causes and other ills that are likely to create large scale support among many constituents. After all, reason and the well-being of the end user is on our side. We should strive for maximum exposure. There is where we have the greatest advantages.

      I would make one related suggestion: consider not sending out the videos until the community has had a chance to see the list and help write a personal letter (or many) to those individuals. Since we are dealing with small numbers (and not blanket mailing of millions), it would be smart to personalize the message. It would also grab attention to the benefits of collaboration if we were able to leverage the community significantly and officially.

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  • tpower81

    I haven't read too much into software patents but I would have to agree that they are a strain on innovation.

    I think that the entire patent process is going to be seeing a some sort of revolution in the coming years. It just seems to me that it doesn't fit the current business climate. New technologies are no good to the world if they are not marketed successfully. Therefore, is it my opinion that there is too much emphasis put on the development of the idea and not all the other people involved in commercializing the innovation for a mainstream audience.

    In addition to this, and particularly for the software industry, where such products can be downloaded instantly anywhere in the world, the patent process seems to be too slow, complicated and expensive.

    Surely in todays frame of reference, where innovation is much more collaborative than in the past; there is room for improvement when considering patent protection.

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  • http://www.fsf.org/ Peter Brown

    This film is being featured tonight for discussion athttp://fdlbooksalon.com/

    The filmmaker Luca Lucarini and End Software Patents director Ciaran O'Riordan will be online and taking questions about the film, Bilski and the campaign against software patents.

  • Kendall (@ideasurge)

    Brad:

    I respect your concerns and certainly bashing patents is a popular activity these days but I think the idea of tackling this issue based on the subject matter–rather than inventiveness–is a bit wrong-headed. New and novel ideas ought to be protected whether they are embodied as hardware, or as software, or as a business process. Prior to formal approval of software patents, patent attorneys had all kinds of success getting "software patents" through the system. They were just re-framed as "a piece of hardware containing instruction for performing the steps of…." In other words, the system found a way to get around subject matter based restrictions by simply changing what layer was being described and tying it to subject matter that did qualify. "Stopping" software patents will not be achieved this way. More importantly, it is focusing on the wrong broken part–novelty.

    The most important question we should be asking is: when does an idea or invention qualify as sufficient novel and unique to qualify for protection? Now THAT is a question worth asking. And I think that same question applies whether you are making some modest improvement on a postage stamp, a slightly better semiconductor manufacturing process, or indeed a chemical composition that has been "discovered" through brute force (no inventiveness there!), a plant or any other sort of idea.

    I agree that some of the current filings are pure silliness but I also believe we need to move away from this debate about software patents and instead start holding inventors to high level of innovation and creativity. Fix that problem and I think the frivolous software patents go away and so do the frivolous patents in all areas that might impede progress. Software is a means for expression and expressing in idea in software does not make an old idea novel or a novel idea suddenly obvious.

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

      Kendall – I’m going to respectfully disagree.  Specifically, your last sentence is a contradiction to the rest of your assertion that software should be valid to be able to be patents.  I specifically do not believe software is something that should be able to be patented – it’s not a valid construct.

      Specifically, you cannot patent “the expression of an idea”.  This is what copyright is for.

      Another perplexing contradictions is that patents are supposed to “disclose” the invention. If this is the case, why isn’t source code included in the patent document?

  • Kendall (@ideasurge)

    Perhaps the better question is whether investors care about having patents filed by small, underfunded software companies when making investment decisions? Patents are filed for many reasons not the least of which is the assumption that one day you won't be a small, underfunded startup and as a result there still is a premium placed on a comprehensive IP strategy. Perhaps you don't like the rules of the game but I guarantee the smart companies still play them.

    Brad: Have you discouraged your techstars companies from seeking patent protection? If not, what is the criteria you give to your startups when they are considering filing for patent protection given your very dim view of their value?

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

      Until the rules change, I encourage companies to spend the “appropriate” time on patents.  In companies where there is deep and unique IP, they tend to spend more time (and money) patenting things.  In companies that are lighter weight (more implementation), less time is spent.

      While I think software shouldn’t be able to patented, my fantasy world doesn’t exist so I encourage people to play by the existing rules.  And that – unfortunately in my book – includes software patents.

      That said, I have never made an investment decision based on the existence (or lack there of) of a patent.

  • http://intensedebate.com/profiles/andyidsinga andy idsinga

    I watching the video – its very interesting.
    I'm fascinated by the tension and questions that arise around "software as an art" (music analogies) and "software as part of a machine" (industrial process analogies). Both have merit.

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