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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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Mailing Out Patent Absurdity

Comments (245)

On the eve of re: Bilski, the anxiously awaited Supreme Court decision on business method patents (with potential implications for software patents), I decided to collaborate with the End Software Patents coalition and send out 200 copies of the short movie they recently produced called Patent Absurdity about why software should not be able to be patented to a focused list of key people.  The letter follows.

Dear XX

My name is Brad Feld and I’m a venture capitalist who has a popular web blog about innovation and investing in tech start-ups at

I’m writing to you about a new documentary film "Patent Absurdity: how software patents broke the system", and including a DVD of that film with this letter. I hope you will spare 30 minutes to watch.

I selected you as one of two hundred influential people to receive this DVD because I wanted to make sure that the film is reaching the right people–people who can help inform the debate over the patenting of software. Specifically, I’m hoping the film will bring you to an understanding of why patents on software are a massive tax on and retardant of innovation in the US.

I’m including with this letter a full list of the 200 people who are receiving a copy of this film as well as publishing those names on-line at:

Any day now the US Supreme Court will issue a ruling in a landmark case known popularly as "Bilski". This ruling is likely to have significant impact on the US economy and the prospects for the new innovative companies that I partner with and who create great new products and services.

Patents, as you are probably aware, are government granted monopolies that last 20 years. They allow the patent holder to restrict others from entering the market. Historically, patents have covered novel machines, processes for industrial manufacture, and pharmaceuticals. In more recent years, patents on software have been granted–hundreds of thousands of patents. These patents cover essential techniques in computer programming, and their existence is having a chilling effect on the startup companies that I work with. These start-ups are finding it increasingly difficult to make headway through this software patent thicket.

Here are some specific points I would like to bring to your attention about software patents:

* The financial cost of defending yourself against a software patent claim are impossible to overcome. Just to analyze whether the claims being made against you are justified will incur legal fees in excess of $50,000.00, and more than $1 million in legal fees before trial. Yet it costs the price of a postage stamp for a software patent holder to make a legal claim against you.


* Economic research demonstrates that software patents are acting as a drag on the US economy.


* Programmers – those skilled in the art of writing software, would be expected to benefit from, and support the patenting of software. They do not. They uniformly despise them as a limitation on their art.


* Venture capitalist like me, who work with new innovative start-ups can testify that software patents have a chilling effect on the market.


* With well over 200,000 software patents having been issued, non practicing entities and hedge funds are buying up tens of thousands of these trash patents and using them to extract hundreds of millions of dollars from US companies. This activity takes the form of a protection racket.


I would be happy to offer my time to answer any questions you might have about this film and what we can do to help end this software patent absurdity.

Yours sincerely,

Brad Feld

  • Stephan Wehner

    Good idea to mention your mail-out in public!

    Although I think that sending the letter out two years ago would have made more of a difference with respect to the "anxiously awaited Supreme Court decision on business method patents."


    • Brad Feld

      Maybe, although it’s highly unlikely that the issue of software patents will be resolved with this Supreme Court decision.

      • Stephan Wehner

        Oh yes, good point! — Stephan

    • C Monsieur

      Stephen, I don't think sending out info about this two years ago would have helped. Personally, I've found that people are only willing to listen when something is in the news. That means now is the time to be educating people. There are only two avenues to ending software patents, the Supreme Court and Congress. Bilski is the Supreme Court's chance, and what ever they decide the next battle is in Congress. I notice that the largest group to receive this DVD are those on the appropriate committees in Congress. That makes sense to me – along with the journalists.

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  • Joe Ludwig

    I had trouble parsing this: "will incur legal fees in excess of $50,000.00, and more than $1 million in legal fees before trial"

    So the legal fees are in excess of both $50k and $1M? Why not just say $1 million?

  • John Lynn

    What's been the response from these people who got the DVDs? Keep up the fight!

  • @wojciech_jawor

    Funny coincidence. I was just thinking about writing about my own experience with software patents. I am a programmer and patents are a drag for me. Even my own! It goes like this – I develop something for the company I currently work for, it gets patented, because the company needs to make sure they have some form of defense in case of a claim, I move to another company and I am completely confused about what I can or cannot do at the new place. Patents are written in such a way it is sometimes impossible to figure out what the claim is even for the original inventor. This absurdity should be wiped out from the face of the earth.

  • Steve Bell

    Wow! And i thought *I* was worked up about Sen. Dodd's FINREG bill, which may wipe out half of Angel investment – which is roughly, 25% of total US startup investment.

    On the legal side, William Carleton of Seattle – he writes one of the top blogs on legal issues impacting startup companies.

    I am so dismayed not to see myself or any of my friends on your excellent list, :-)

    I know that there are many things wrong with this country and where it's headed. What just blew me out of the water, was witnessing the gigantic rip-off of RIMM a few years back. Before that, I was involved in Token-Ring networking at one time, and a European fellow named Olaf Soderblum hired trolls to rip off all the legitimate 802.5 manufacturers for many years, to the tune of 10-15% of gross revenues… using an HDLC-like patent that he first extorted IBM with. That's when i first became acutely aware that this is the same kind of extortion that the Mafia engages in – only they use the law, and lawyers as enforcers. It's so much worse today.

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  • Ciaran O’Riordan

    @Steve Bell: I’m building a list of vocal venture capitalists against software patents. If you’re one, or if you know of others, could you add links to your/their anti-swpat essays here:

    It’s a publicly editable wiki. Thanks.

    @Brad: good work!

  • @nickhuzar

    So true. With my previous venture I went through the patent process. It's been 6years now and still its in processing. I have left the company and am presenting launching a new venture tech venture in Seattle,WA. No plans on wasting good capital for patents this time.

  • Jacob

    Calling patents in general "government granted monopolies" makes you sound too fringish. I believe most think patents do have their place. Its the software side that has gotten way out of control. Anyway, hopefully this does some good, that case is going to be a big one.

    • Jose_X

      >> Calling patents in general "government granted monopolies" makes you sound too fringish.

      The patent system as a whole has outlived the days when our government was scarcely a toddler, when communication, distribution, financing, education, etc, in the private and public sectors alike were also very antiquated compared to today.

      However, I entirely agree that there are many features of software and business methods that make these types of patents generally stifling to a significantly higher degree than is the case for most other traditionally patentable areas.

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  • Justin

    Patents have always been hated by the have-nots, and loved by the ones who have patents. The only difference now is that the number of people who are software developers is huge (career developers, enthusiasts etc.) – and everyone hate software patents b'cos it is so easy to copy – yet protected by law. Decompiling something is not a huge deal. So the issue is mostly – oh it is so easy to copy it – but it is protected, rather than 'that is not so innovative'.

    But why should a software patent on data compression for example be considered any less important than a patent on the carbon filament ? It is new way of doing something – and it is useful. Software patents may have some flaws, say the ease with which they are awarded or the duration. But to say software patents should not exist makes no sense.

    Most innovations are from established companies that do research. VCs rarely end up with a software company that has a lot to patent. So this is the easiest solution – oh lets find a way to reduce the liability of copying someone else's innovation!

    • Jose_X

      Justin, don't kid yourself. The standard for patenting is: **not obvious to an average participant**.

      This means geniuses, and many other really smart people, and many fairly above average smart people, and many hard-working inexperienced or less skilled people are getting sucker-punched by the legal standard in place, and this gut pain lasts for 2 full decades (at least it does if they want to remain "legal" according to the unconstitutional USC 35).

      The fact is that if open source software got automatic patents ($0), as is the case for copyright, just about all large companies would find themselves potentially locked out of many features and techniques (no matter how much they invested in them or derived them "independently"), as these many invention descriptions become public knowledge first through open source software or other open forums and discussions. Heck, a client suggesting an "original" feature to Microsoft would instantaneously pass on a liability to Microsoft should Microsoft follow up and implement that feature. [Patents are that broad!]

      The patent system rewards broadness. This implies that the decent implementation details can and are kept secret by (or aren't even known to) those taking out patents quickly. If you take time to develop the idea beyond the low bar required by the patent, you risk others getting the patent. Plus, you don't need to be anything but "above average" to get to a patent quickly enough. Most of the time, those with the best ideas and insight statistically aren't going to be the ones to take out the patent. They will be busy with greater matters.

      People taking out patents don't work outside a social context. Not even Einstein was able to define Relativity without leveraging his peers significantly.

      Einstein didn't need a patent to be very creative. He also could have been stopped short in his tracks if others had taken out certain patents. And what he contributed to society was surely much more significant than the content of today's patents.

      Why are we creating so much artificial scarcity that ends up being so key to building so many useful software products?

      Why are we rewarding the wrong people so greatly (with a monopoly they can sit on while running up costs and not be too much more creative for years to come)?

      Why are we hand-cuffing the wrong people (and so many of them) for so long?

      Why are we allowing large companies to use patents to protect their large sizes and keep many smaller competitors out? Why are patents being used against small inventors?

      Why does the patent system significantly favor the wealthy, eg, by shunning all inventions from those that can't afford to patent their thousands of ideas? Isn't the monopoly subsidy ideally intended to give the small a way to fight off the large?

      Why does the patent system significantly penalize those that are motivated to build quality products to the end rather than to indulge in writing up generalized ideas quickly in order to stop their peers from competing?

      Why are our most generous inventors (who work in the open) being shoved under the proverbial bus, in particular, by allowing others to copy them and patent ahead of them to stop future development and by pre-empting their copyright wishes?

      Why are so many people being denied their First Amendment rights to express themselves on their own volition and as best they see fit and share or trade these expressions with their neighbors?

      • Justin


        Not sure where to start. Open source and patents ? What patents ? Very little of open source software is 'innovative'. It is mostly – lets copy features from Unix and make linux, lets copy Microsoft Office and make open office etc. I am sure there are some patents with open source – just that are not even within a magnitude of those within proprietary software.

        You dont ask for implementation details for pharma molecules – so why, if I am a patent troll, do I need to show you how exactly to use something and market it. For example, if I find a way to compress video by a factor 10 higher than MPEG with limited loss of quality – why should I write the software ? I will sell it to Youtube, I will sell it to Winzip – whoever. This is like arguing that pure innovation has no value. I dont agree.

        If you are a small company – and you want to use say, a pharma molecule, for a specific purpose that it was not originally intended for (and has phenomenal results), the big pharma company is not obligated to license it to you. So why bitch about this in software – just say you dont like patents period. Oh and stop pulling in the constitution for these arguments – the constitution recognizes innovative ideas as assets.

        I am bored of replying to the rest of your points – they are pretty boring and redundant. (not that some of the ones I discussed are not)

        • Jose_X

          Justin, let me know when you find proprietary software, a patent, or a "proprietary" reference to any of the following:

          [But before I get started, let me ask you how many of the hundreds of millions of lines of open source code have you read in your life?]


          – Desktop Windows that you can grab by the corner with an animated hand-grabbing-icon mouse pointer and "fling" to the side by moving the mouse quickly in the up, down, left, or right direction so that the windows moves like a piece of paper and comes to rest (neatly or not, depending on the mode) over on the relevant side of the monitor screen as a very small icon hinting at the contents of the Windows.

          – Further, you can set up stacks of windows on various topics where the application document being thrown was tagged with metadata so that when you flick the windows to the side it goes straight to rest at the top of the stack that is controlled by such metadata.

          – A graphic 2D or 3D game that interacts with your desktop, eg, allowing for the following: a character from the game pops up and moves over to your cursor or mouse pointer and starts humming, tapping foot, etc, so as to let you know (as an alarm) that it is time for you to take a break and play some games.

          – .. the character can be easily prompted to display a handful of cards, such that when you pick a card, that determines to which of your saved points in the game you return.

          – .. before you dive into the game, the character can be instructed to grab icons representing a few of your files which later will be shown to you at some point when you are playing the game as a way to get you to pause the game and think about your work. These flashes of your work documents might be shown, eg, during a slow moment in the game when enemies have been vanquished or you are taking things easy.

          – .. The work files can be presented as an opportunity to get you out of a jam without dying during the game, eg, it can appear across the room by a table and you get teleported to safety (of your work desktop) if you can reach the icon before getting fragged.

          – .. You can specifically tag sections of your document so as to hint when or in what part of the game this section will be brought up somehow. This could be useful in anticipation that the work you are doing (and your state of mind) will gain from you getting inspired through what goes on in the game in that section. [or you wanted to be reminded to take notes at a particular point in the game].

          – Allow one user to keep tabs on how a different user's game is going by allowing the other's game actions to be shown on your screen: either in a small Window; on a desktop background that lies underneath your regular wallpaper and which can be accessed by "ripping" part of the desktop off quickly with a mouse gesture; with flashes of the action covering your screen for a fraction of a second when the other achieves certain events (eg, frags an enemy or reaches a key point in the game)…

          – Extend almost any existing open source application to work as follows. When used by a person, the actions are recorded and then translated into equivalent actions on some different but related application. This could be used as a great way to have a person expert with one application become expert in the second application. Eg, You open a menu, open a file, draw on it, add an effect, move objects around, add a bit of sound, add a macro, adjust the windows, save the workspace/files, etc, and then you go watch an animation of this same functionality being performed through the interface and mechanisms of this other application you are trying to learn. Now, you know how to perform these actions on this second application. You can effect this by adding a term to every single action/behavior on each application and then mapping. For applications that tend to have certain well-defined behaviors, you can first build an intermediate (canonical) representation of all behavior possible and then map every similar application to this IR. [Yes, this sounds an awful lot like compiler design.]

          [10] — Click down the mouse button to graphically press a pin onto the existing document. Immediately the document disappears and is replaced by an icon of the document with the pin through it. You then move the mouse to move that icon on your desktop. When you release the mouse button the document icon will get pinned at that spot. Optionally, you can pick the color of the pin to match some metadata (eg, like the date or to set an alarm).

          • Jose_X

            – .. At the time of freezing the document, you can freeze other document context such as one or more selections/highlights, the state of the app (eg, wordwrap, line number display, colorization, customizations made to the menu entries, etc).

            – .. This can form a way to file documents in a more graphical way (to help add mental context): The chosen directory is like a scroll parchment that is unwrapped by large animated hands. The pinned document icon is then inserted there much as you could on the desktop. You also see past document states that were saved onto that parchment as other pinned icons. Then the scroll rolls up again.

            – .. Additionally, at the time of pinning the document, you can add notes and metadata onto a smaller scroll animation that folds up into a small roll and gets thrown into the document. The number and type of notes can be seen by mousing over the pinned document icon or by opening the document.

            – Have an app that allows you to pick files or parts of files (eg, by typing the file name, marking an existing open file, or by generating the file names/locations through some other app) and visually show where on the hard drive or CD these files lie (eg, it would be a fraction of one or more circles). You can zoom in all the way to actually see the words based on where they lie on that media.

            – With a monitor that has speaker sections on its various sides, you can control the surround sound direction and intensity by, eg, scribbling with the mouse on the desktop to indicate the direction and strength of sound (so mousing back and forth various times near the top right of the screen and then quickly on the left side would have most sound come from the top left speakers but a little on the left side as well). [Many alternatives to mouse scribbling exist: eg, slider, button, text controls.]

            – .. The type of scribbling (ie, the selected mode/options) can allow you to define the types of sounds, eg, background music, website flash advertisements, alarm of various types, "you've got mail" notices, results of various batch processing, etc. This way, you know based on where the sound is coming from, what application is putting forth that sound.

            – ..You can add in effects (like delays, frequency envelop shaping, volume control) also on a per sound category and location basis.

            – .. Allow the sounding controls to be scriptable, in particular, integrate such specifications into many types of apps and context menus. This would allow for a running application's periodic results to be brought to your attention in a specific way (ie, special effect, volume, and sound location) depending on the actual resulting values or progress.

            – A new torrent protocol would allow you to specify which parts of files you want to be chunked out first (there would be something like a probability distribution). The distribution can vary with respect to properties of the time of day, of the downloader, etc. This distribution information can remain private and solely under the control of the torrent file owner.

            [20] — .. A graphical mousing tool would allow you to scratch (ie, scribble) at an image of the torrent file to define this same distribution information. [You could use many other widgets to define the distribution manually.]

          • Jose_X

            – .. Allow for the distribution information to be defined automatically based on file and other context properties.

            – Create a tetris or similar set of games where you can simulate a patent monopoly world: eg, every shape combination that falls on your screen first, cannot be reproduced by your competitor (monopoly, remember). This will point out how ridiculous it can be to apply monopolies if you wish to promote the progress.

            – .. There are many variations to the Monopoly-tris game, including: (b) allowing others to reuse block patterns you "monopolize" for a fraction of their points, (c) you can show as a soft shadow all the places where dropping the block would result in a violation so that you have warning (this is cheating since in the real world you can't tell what patents apply), (d) the point fractions the other person wants as a royalty can be shown within the soft shadows so that you can pick your poison.

            – Write up a game (eg, a space shooter) that simulates the result of a test given to a student (eg, a timed math word problem or spelling or … test). A group of students would, for example, be able to figure out which student did best and which students had trouble with certain sections, and which students were fast in other sections, etc, based on how their animation "fight" plays out. [It's a way to add fun to learning and to tests.]

            – .. Have the animation be generated in real time and to display head-to-head "combat". For example, the students solve problems in private but the publicly displayed animated "battle" sequence cues in how they are doing relative to each other.

            – .. Have this same driver mechanism but used in nonviolent games such as showing one character having more success finding more interesting objects in a forest scene more quickly or hopscotching more successfully.

            – As an aid to the visually impaired (or anyone else), allow documents to be saved automatically with an attached sound file or pitch profile (eg, use mouse scratching to help define the pitch profile).

            – .. Then create a search file mode where, say you have a folder opened up taking up the whole screen and where the files are inside scattered around (eg, an example of this is the typical free range desktop icon placement or the pinned example given earlier) and the sound you hear is a blend of the sounds coming from all the files. The blend can be based on the distance of that sound from the mouse pointer.

            – .. A mode of the blending can allow for all files out of a certain radius to make no sound and any file more than a certain fraction closer than all others to be heard exclusively.

            [30] — .. You can click on different key or mouse button or similar to cause the modes to change quickly. This can allow you to use various blend techniques where one type might be optimized to allow you to home in on a type of file when far away and then another blend type would be optimized to spot out files quickly when various related types would be near each other.

          • Jose_X

            – .. Allow traversing of folders quickly by swinging the mouse to the (eg) top right corner of the screen to go to parent folder.

            – .. Have a mode where all the subfolders are lined up at the bottom and you can quickly pass by the subfolders and then hit down in a fast motion right around the right vicinity (based on the sounds you hear). If a particular resolution is not met, then the first downward movement eliminates all but (eg) 2 or 3 of the subfolders which then appear spread out widely. A second downward jerk of the mouse at the right spot would be easier to be on target since the folders would be far from each other (eg, 3 at left, center, and right, rather than 20 subfolders all next to each other).

            – .. As a special automatic mode, have the sound coming from each folder be a pitch that suggests the size of the total contents of the subfolder (or maybe only going in one level at a time, etc). As another blend mode, have the pitch sound be based on last access time. As a special blend mode, have the frequency distribution of the file types inside the folders (eg, picture or png or word document or spreadsheet..) help shape the frequency sound.

            – .. Allow for the user to speak or type key words (of some metadata type) and then have the sound profile of the searching be tuned to folders/files based on those key words.

            – A Live Distro (live distro examples can be dug up here: ) where you can set a mode so that every menu item you select from the desktop menu or from an application menu gives a tutorial for that entry (eg, it could be a video or animation or picture or some text). This would be a quick way to learn how to use any part of the distro without having to manually look up help docs of any sort. When you want help, just switch to learn mode and click away.

            – .. Create Live Distros to cater to hobbies and to social causes. This would allow all the tools necessary and already expertly set up to be shared freely (and legally, of course) and easily (eg, a CD) with others sharing the same goals. The Live Distro is ideal for this and conflicts are not a problem because the live environment defines a new environment entirely. [Note, virtualization can simulate this but it's not as likely to work because of multiple competing standards and because many people don't even have virtualization set up.]

            – Build a distro and PC system that has all of the relevant source code in the hard drive. We tag all projects (all source code) with metadata describing "all" aspects of the project (eg, all the interfaces implemented, the source location and uuid, the license of every single line if necessary…). You then update the distro by picking the app interface you want rather than to install a pre-cooked package. Thus, by specifying the properties of what you want, the distro decides what to compile with which parameters and if to recompile other applications or move them around. This helps solve the conflict scenarios that exist when you package something with details (but no associated metadata description) that then conflict with other details chosen by other packagers. The metadata has to be extensive and thorough, eg, specifying (implicitly in most cases) how conflicts would be resolved (eg, move the server port or rename something, etc). The computer would cache past compilations.

            – .. Allow applications to be downloaded simply by their metadata file. After security checks, the applications would get built automatically based on this metadata bundle (which of course, lists the source through a network uuid of its components (including of patches)). If necessary (based on priority rules or user manual input), rebuild parts of the existing system to accommodate the new application. Download any necessary patches and source. In short, a metadata file re-adjusts the state of the computer.

            – .. Build an application for the source PC that allows you to click on any application and have pop up the relevant body of source code. Then you can change any lines in any of the files and hit a button and the app would be recompiled under a different name with relevant entries being created in menus for easy access to your fork. Essentially: click, type, click and you have a fork.

            [40] — .. And also be able to click on running software and the source code pertaining to where the application was when clicked would be highlighted for you. [This is possible with apps created with debugging info.] A context menu would allow you to see not just the top window application but also the lines where the kernel, the window manager, etc, were at that point in time.

          • Jose_X

            – Generate automatic animations (eg, for tutorial purposes) by using existing templates and xml generation rules to build up (fill in) something like synfig's SIF files that would be rendered by the synfig renderer. We leverage synfig's interpolation support around waypoints. Also, leverage the built in "conversions" (dependency relations) capabilities to handle aspects of the automation.

            [42] — [I'll take a short-cut for this entry and mention that the "git" distributed source control software almost surely has a number of interesting and useful features/use-cases that could have been patented. And yes, we could find patentable material in just about any FOSS project or even any source code file because the US patent system has such a low bar to granting out patents. The USPTO will give a patent to almost anything that is different and apparently not patented before. Of course, the overly specific will not produce very broad and sought after patents at all.]


            OK, in a few hours (Saturday morning before noon, which was when I read your reply), I was able to come up with a list of 40+ items.

            Yet you said *all* of open source had only a *few* innovations? Hogwash.

            You made this claim obviously after reading the few hundred million lines of open source code that exist out there and all related notes I presume?

            No, I think you would gain by re-evaluating your understanding of open source innovation and the absurdity of patents.

            Maybe I will formalize some of the above "inventions" (and make it a little less specific — always broad broad broad) and pay a very very large amount of money to the patent office.

            Then I can stall progress for 20 years in all of the above mentioned ways.

            Or, I can just go along my merry way trying to contribute to open source as many tens of thousands do daily and stay clear of the shame that is the patent system.

            Patents are a sick joke on those that aren't wealthy and sitting around with little more to do than to harass society drawing up patents and perhaps even posting in online forums their support of this indecent unconstitutional systems. [or pressured to try to keep up with other commercial companies for defensive purposes.]

            FWIW, Red Hat and Novell just invalidated 3 patents that some patent troll was trying to use to damage open source. It took 3 years and lots of money to right this wrong. That is a lot of money and resource which could have gone to instead continue to innovate and build great open source.

            As for the troll, maybe next time the troll will find patents that aren't a copy of existing prior art. Patent authors are great at copying others' ideas (or maybe repeating inventions independently by different folks is common) and then trying to hold back progress by installing a toll booth to be controlled solely by them courtesy of our corporatized government's unconstitutional illegal patent law.

            And in case you are wondering, I doubt you will find just which lines of open source code implement the above items; however, it's a long but almost academic exercise to hack some version of the above functionality into the existing code bases. If trolls are allowed to write up broad patent claims without an implementation of a full product and call it innovation, surely I can do the same if the above were to meet the same standards of such patent claims. And this is why I need your help in finding prior art for any/all of the above items.

        • Jose_X

          >> If you are a small company – and you want to use say, a pharma molecule, for a specific purpose that it was not originally intended for (and has phenomenal results), the big pharma company is not obligated to license it to you. So why bitch about this in software – just say you dont like patents period. Oh and stop pulling in the constitution for these arguments – the constitution recognizes innovative ideas as assets.

          Pharma patents have many problems as well. 20 year monopolies there are costing lives and the costs and incentives can be managed in other ways besides monopolies.

          That said, you can't compare a program someone writes up in their house and distributes to the world.. with the requirements to have a laboratory, manufacturing plant, expensive distribution channel, associated safety testing, and then the price that must be charged to get the product out to the same millions of people that got the software. And did I say the software was delivered in seconds?

          Software is math and speech. It is based on an idealized model that defies the constraints of physics (as is the case for fiction writers).

          Certainly, hand-cuffing world+dog on something that many derive independently does not promote the progress. So if it does not promote the progress, it falls out of scope. If it violates the First Amendment, it also can't be legal on this count.

          >> For example, if I find a way to compress video by a factor 10 higher than MPEG

          I want to point out that most software patents don't contribute anything remotely complex like this.

          Also, mathematicians have been doing this sort of stuff for ages without getting patents.

          Finally, I don't care if patent authors don't produce source code. An absurdity, however, is that those that produce full source and much innovation don't get any automatic protection at all. You have to be wealthy and have lots of time on your hands to be writing up patents… Well, the system is very broken and rewards this foolishness, so I can understand there would be some temptation to exploit the system.

    • phayes

      “Patents have always been hated by the have-nots,and loved by the ones who have patents.”

      You don't know much about the history of the patent system, do you? As far as software patents alone are concerned, one of the first 'haters' of them was the king of patents, IBM (It's thanks to their early corporate policy on them that the FFT was not patented).

      “The only difference now is that the number of people who are software developers is huge (career developers, enthusiasts etc.) – and everyone hate software patents b'cos it is so easy to copy – yet protected by law.”

      It looked like you were about to make a well-informed point there: that difference – the huge number of people who are software developers and inventors – is extremely important to the consideration of whether software should be patent eligible subject matter or not, but it is important in exactly the opposite way you suggest and a strong indication that software patents are likely to be superfluous and counter-productive. (If you don't know why your remark about ease of copying is so ironic just think about it for a few minutes – it has to do with independent (re-)invention – or see any textbook on patent system economics).

      “But why should a software patent on data compression for example be considered any less important than a patent on the carbon filament ? … But to say software patents should not exist makes no sense.”

      On the contrary, given what is known – historically and economically – about the patent system and its effects, the assumptions and assertions implicit in the above are perverse. In fact unless you are asking for theoretical and empirical justification for the existence of software patents you are shifting the burden of proof.

      • phayes

        That should be “ … independent (re-)invention, among other things … ”.

        • Justin

          Had a nice long reply – but it got deleted, so lets try again, with a shorter reply. Time I take screen shots of this reply too

          1. First point – IBM does not support software patents. Nonsense. IBM supports software patents – they don't support software patents on business methods (like one click). Check up IBM's amicus curiae on Bilski. Furthermore – IBM has threatened EU with closure of facilities if software patents are not allowed in EU. So your first point has no basis. (By the way FFT was invented in 1800s.. so IBM may have had other issues with the patent)

          2. Reinvention is possible in every field. Just because it is, does not imply the first one has no value. It is quite easy to come up different ways to do the same thing – once you even realize it is possible. Blackbox reinvention is commonly used to reduce the risk of being sued. But it is almost always preceded by someone telling the team what the final result should be. Does not mean the 'blackbox team' was innovative – just that they found a nice way to get around the first person's innovative idea.

          3. Patents have given a lot to the US economy. Every system has its problems – but patents have historically helped by increasing the innovation available to the society. Yup – some software patents like 1-Click maybe rubbish. but there are lot there are useful.

          In every industry, startups and small companies would prefer to have no patent regime. They have no resources – and it is nice to ride on pigtails of someone else. Doesnt mean patent regime is bad – it just means startups have a barrier to growth, and a lot of startups get over the barrier.

          Sorry – but this whole argument seems useless.


          • phayes

            1. The fact that IBM supports software patents /now/ is undisputed but is irrelevant and no defence of your erroneous statements and fallacious reasoning.

            2. & 3. More fallacious reasoning and false assertions.

            Sorry but your whole argument is (grossly) ignorant and fallacious.

            PS. FYI the FFT was invented in the middle of the twentieth century. I think perhaps you're confusing the algorithm with the mathematical (Fourier) theory.

          • Justin

            LOL, I thought the whole thrust of your earlier argument was.. "IBM king of patents" does not support software patents. If that was irrelevant.. then why include that nonsense ?

            And then you have the gall to say 2 & 3 are false assertions ? LOL maybe I missing something, or you are too heavily invested in trying to get around software patents.

            Fourier theory and FFT are intimately related – and a lot of people worked on the key elements of FFT since 1800s. According to Cooley himself, the 1965 paper only led to a redisovery of FFT – not 'invented' FFT. If you want to go through the thing – a quick search on google for rediscovery of FFT may help you out.

            If all your assertions are so faulty – no wonder your thoughts on patents are all hogwash!

          • phayes

            “LOL, I thought the whole thrust of your earlier argument was.. "IBM king of patents" does not support software patents.”

            I'm sure you did think that but in reality it serves merely as a refutation of your false assertion (in quotes) which it follows – as is obvious to anyone of ordinary intelligence (LOL).

            “maybe I missing something”

            Just about everything relevant to the question of whether software is justifiable as patent eligible subject matter or not.

            “According to Cooley himself, the 1965 paper only led to a redisovery of FFT – not 'invented' FFT”.

            So what? According to Cooley himself, writing in hindsight in 1987, “the FFT was re-discovered, developed extensively, and applied on electronic computers in 1965…”

            IOW it was still a likely *patentable* invention in 1965.

          • Justin

            Refutation of my point – with a false statement (that IBM does not support software patents) does not make sense.. but maybe in your world of 'ordinary intelligence' it does.

            "Likely a patentable invention" is quite a huge change from your earlier assertion that IBM did not patent it since it did not believe in patenting software. Furthermore, your belief that it was likely patentable has as much credibility as your other comment about IBM hating software patents.

            You had two three points – and I pointed out that none of them checked up. So guess you have a lot of justifiable reasons for software patents to be bad – except that you have nothing to back up your points.

            'Ordinary intelligence' or not, your position is deeply flawed – and I would not be surprised if you support people downloading music illegally as well as people copying software!

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  • Dylan

    @Justin June : Software patents are essentially patents on maths. Which means they are discovered, not invented. As maths is the language of physics, software patents are movable beyond a single purpose. Hence patent trolling. Now if you are allowed to patent maths, I want to be able patent english and sue everyone you using my property without a license.

    • Justin

      Math is the language of Physics, and software patents is essentially patents on math. While the first part is very true, and second part is partially true. But saying any patent on software implies a patent on math and hence you should be given patents on english is not only a bit convoluted but quite stupid.

      Lets see, english compositions do have protection (copyright) – and under the 'monkeys with typewriters' scenario, it would be 'discovered' if enough time was given. Under your messed up argument, copyrights are wrong too.

      Just because something is discovered – does not mean that the effort expended in th discovery are not worth anything. Hence, discoveries (say land etc.), do give you limited legal rights to that discovery. So in other words, if you went and found a brand new island in the pacific that was never seen before, you can claim it. Under your argument that would be wrong too.

      Again – the only difference between most patents and software is that software patents are like children's names. They are easy to copy. But just 'cos they are easy to copy does not mean, they are worthless. Data compression techniques save a lot of money/ bandwidth, innovations such as clearType from Msft help improve displays, Oracle's innovations in databases have brought so many new features to DBs.

      Like I mentioned before – software patents have problems and need some fixing. But saying software patents should be stopped is taking a easy route out to copy other's work. Taking your example of interest in 'english language', I am guessing u support plagiarism too, since english is a language like math and should not be protected.

      • Jose_X

        Justin, you confuse the meaning of "plagiarism". Plagiarism means you don't pass off others' work as your own. It is a distinct concept from copyright and exists without it.

        Copyrights (barring loose "derivative works" interpretations which unfortunately have been backed in the courts) are much more narrow than patents because they apply to the literal and not to the idea (ie, to the literal and not to a broad description of a few characteristics of a family of much more complex and feature-rich products).

        A "limited protection" is not 20 years of monopoly! There is already so much value in inventing something, that one has to seriously question the intentions and creativity of someone that says that they need "limited" protection of a 20 year monopoly! Breaking the knees of everyone else and violating their Constitutional guarantees is no way to reward innovation or promote progress. I think we need protections from people that say they need 20 year monopolies.

        That copying software/information is easy, fast, and inexpensive shows the tragedy and loss to society of trying to make it an extremely scarce resource, especially by interfering with what others create relatively independently of the patent holder.

        Software patents have some problems that need fixing like a large hole in my abdomen has problems that needs fixing. The quicker and more thorough the solution, the better.

        • Justin

          Of the four things I pointed out – the only one you could come up with was a discussion on plagiarism ?

          Every time I rebut one of your points, you seem to come up with new stuff. So lets see – now you think people who want to make money off their patents are not 'creative'.

          Get a useful patent – and then give it up for the good of the society. Then you can question the intent of different inventors.

          Your ideas seem distinctly socialist. Everyone wants it – so lets give it to them.. and negate software patents.

          Sorry – I dont think your ideas are worth discussing anymore.

          • Jose_X

            You only recognized the plagiarism point?

            I think you are too high on yourself to think that a little creativity merits 20 years. Einstein and many other folk surely didn't think 20 years was necessary, but perhaps those that seek patents are a little unsure of themselves. Taking out patents is quite a distraction from doing useful work and it is very antisocial. Also, where does a person who is not interested in raping the public start when you consider just how many ideas one has at any given point in time?

            Again, don't confuse the person taking out a patent with being anything but one of many that sees something. In particular, there is a lot of overlap among patents and most claims add very little (if anything) over existing public art.

            The professional patent author (plus lawyer team) does have skills. I am not denying that. To be good, they usually have to have at least moderate technical skills. Then they find places society is moving and where perhaps no one else has yet filed a patent (but only samples of "prior art" that they can go around or hope others don't recognize exist), and they jump on these opportunities.

            Why does our government give private citizens the ability to claim indiscriminate stifling injunctive and stifling tax rights (and threat rights) in broad areas is beyond me? particular for software, where the stifling costs are so high and where, as the open source world has made plenty clear, only a tiny capital investment is needed (the software product is a product of the mind only).

    • James Lin

      I think one way to fix the whole dilemma is to make math patentable. How does the process of discovering new math different from other engineering feat? It requires at least just as much thought, experimentation, and validation. If anyone can come up with new, useful math at this era, what's the harm of him keeping the monopoly for 20 years? If it's of much utility then there's value in his discovery, otherwise, just don't use it.

      • Brad Feld

        I hope you are being sarcastic.

        • James Lin

          If someone came up with a new math that provides such improvement that we can't live without it, why can't it be patented? I'm sure a lot of effort/thought is required so why shouldn't he be rewarded? He doesn't just "discover" it from getting hit by a falling apple.

          But I concede the current patent life of 20yrs is too long. With today's pace and communication advances (email, tweeter, and demo remotely), a patent's 1950's 20yr. potential can be realized in shorter amount of time.

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  • Michael Tiemann

    Thanks for this, Brad!

    As happy I was was with the verdict of IPI v. Red Hat (Red Hat prevailed in its defense and IPI lost the three patents they asserted against us), I would prefer to never again be called to defend against an infringement assertion. Certainly if we can move software out of the scope of patentable subject material, then I won't have to! Keep up the good work,


  • Bill Mosby

    Thanks so much for your continuing efforts on this.

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