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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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Have We Reached The Software Patent Tipping Point?

Comments (9)

We’ve shifted into a new zone in the world of software patent stupidity.  A few weeks ago, Oracle sued Google over a series of Java-related patents they got when they acquired Sun.  Last week, Paul Allen sued 11 major software companies, including Google, over four patents that were granted to his now defunct Interval Research think tank.

Much of the early commentary has already been said.  And, from what I’ve read, it’s not very generous to either Oracle or Paul Allen.  One of the best lines is from James Gosling, the authors of RE38.104 (Method and apparatus for resolving data references in generated code) in his post The shit finally hits the fan.  There has been plenty of speculation about the motivation of the Oracle patents and the speculation as to Paul Allen’s motivation is just beginning.  Regardless, there are lots of lawyers in the mix advising their clients and devising strategies around these patents.

My own opinion will be no surprise to regular readers of this blog.  I think this behavior is an absurd abuse of the patent system.  I think it’s a massive tax on innovation.  I think it’s an insult to anyone who is a real innovator.

As I was reading through some of the Paul Allen commentary this morning, it occurred to me that this might finally be a tipping point.  Last week, Microsoft asked the supreme court to hear their appeal of the I4i patent suit.  I hope Google steps up and really takes a stand here given that they are on the receiving end of both the Oracle and Allen suits.

Maybe we’ve reached a tipping point.  If you want a little more perspective, go read the book review of Lewis Hyde’s Common as Air.  Or better yet, read Common as Air.

  • http://twitter.com/stillchip @stillchip

    The very fact that most patent lawsuits these days are from organizations that have become top heavy from the lawyer firms that have taken them over. Since most of the patent laws were written by lawyers should be a big red warning flag that patent law is out of control. Lawyers are the only ones allowed to write, interpret, and cause enforcement of the patent laws showing that this facet of our law has become inconceivably corrupt.

  • http://www.facebook.com/audrey.klammer Audrey Klammer

    Hmmm, why do I have this strange feeling that soon Microsoft will start making genetically modified laptops, and then sue people when they blow into their lap by accident.

  • rtoennis

    I read the NYT review of "Common as Air". Makes me want to buy the book.

    Key comment in the review…,"But he does not propose a program for action, nor does he dispute the need for limited commercial applications of new knowledge."

    This to me continues to be the problem with cleaning up the mess we are in with the state of the patent system. No one is proposing a new model that solves the obvious problems of the current system but retains the protections needed for small, independent, non-wealthy innovators.

    In human societies, "Power corrupts and absolute power corrupts absolutely". If there was absolutely no patent protection for internet-based innovation (SW copyright is no protection at all), it is a fact of human nature that those humans with wealth/power will take advantage of the situation. Sad but true.

    A completely open creative commons of all new internet ideas/knowledge that have commercial potential will result in those with wealth/power taking the best ideas from the non-wealthy innovators and preventing those rising entrepreneurs from pursuing the blessings of liberty.

    In theory, a fully open creative commons where all can leverage the common knowledge for personal and common good on a level playing field is an attractive but utopian vision. It works only in a society where everyone has reached a point of financial security significantly beyond having their basic needs for food, shelter, rest and liesure fully met. In that utopia everyone can focus all their energies equally on creative pursuits and all would benefit equally. But this is not realistically achievable anytime soon.

    The reality is when you add the power of "previously accumulated wealth" to this egalitarian vision of a creative commons the true outcome is the "rich will get richer" and the "poor man innovator" will be exploited by the wealthy without redress of his grievance.

    I have in the past proposed a new patenting model for protecting/encouraging small non-wealthy innovators to reach for the stars without fear of having their ideas taken from them by accumulations of wealth and leaving those "working class innovators" with no financial benefit for their innovative efforts.

    But no one seems interested in thoughtful well-designed solutions that are balanced in alleviating the ills of the current system but retaining the intents of the framers in this area.

    The debate seems to be limited to "Status Quo at all costs!" or "Throw out both the baby and the bath water!"

  • GottaLayLow

    As a patent attorney, I don't see the problem as software patents per-se, but a combination of poor examination and equally poor reporting by non-technical reporters who do not understand the patent system.

    Couple this with a legal system that allows any lawsuit at the drop-of-a-hat, and presto!

    Until legal reforms are instituted that include holding lawyers for losing parties "jointly and severally liable" for the loss if the case is taken on contingency, society will suffer under the thumb of snakes in suits.

  • Greg

    The patent system was designed to provide an incentive for innovation to benefit the greater good. Patents originally had more reasonable durations which have been extended by the lobby of corporate America even though the pace of innovation has quickened and most studies show shorter durations would be of greater benefit to the public while still providing more than enough incentive for inventors. Unfortunately with software, the nature of the business is innovation and with or without protection developers will create new software and add features as fast as they can to provide a compelling reason to choose their product in the market place. No longer serving the greater good, patents on software have the opposite affect on innovation. Innovators are threatened by litigation from patent holders with significant legal resources (generally large corporations) and patents on broad processes or concepts or algorithm behavior which block not only clones, but more often more efficient and alternative code implementations of a similar feature. My point is that without software patents, I find it very hard to believe my Wall Street clients would pull capital from the industry (in fact they may invest more) and my entrepreneurial friends in the valley would stop developing new software and innovating (in fact they might be more enthusiastic). So how does the software patent system serve the public good?

    The United States bureaucracy is slow, burdened by significant lobbies, and unpredictable. My second question, is where can you register a young software company to minimize the patent infringement risk? Have any jurisdictions banned software patents? Could a Caribbean island become the next silicon valley? Assuming the U.S. system isn't fixed for years, where can we go to minimize risk and protect the hard work of our software coders?

  • angry dude

    Why is it so diffucult to understand that there is no bright demarkation line between software and (silicon) hardware ?
    Any attempt to ban "software patents" will result in an unimaginable legal mess unless of course all computing and (digital) electronics-related patents are banned – good luck with that…

    The ignorance of anti-"software patent" crowd is unbelievable

    • http://www.feld.com Brad Feld

      I usually don't respond to comments from folks like "angry dude" and "patent troll" but this one bugged me.

      There is actually a remarkably bright line here. Anyone that has actually built software, hardware, and silicon-related products knows this.

      You also presume we aren't already in an "unimaginable legal mess." That's exactly the issue – we are! We need to solve for that.

      • angry dude

        Anyone who has actually built e.g. some DSP-related products like voice codecs for mobile phones etc knows that the choice between selecting e.g. hardware ASIC implementation and using general purpose programmable DSP chip is dictated by many practical factors such as cost of initial development and subsequent mass-production, ease of modifying the product, size and power consumption etc. etvc. etvc
        The functionality of device can be identical between "pure hardware" (ASIC chip) and "pure software" (program for general purpose DSP chip or even commodity Windows PC)

        Are you proposing banning all patents on hardware implementations ?

        Do you realize that it is possible to implement any piece of software, even the entire Java Virtual Machine, purely in hardware as a custom-made silicon chip (although it would be hugely expensive and unpractical)

        Banning "software patents" will only create HUGE loopholes for infringers to steal technologies

        SOFTWARE = HARDWARE

        Write it in huge letters on you blog and give it a rest

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

          Dear Angry Dude: I wish you would come out in the open and give us your bona fides so we can actually have a real conversation with credibility on your side.

          Of course you can implement software in hardware. But that doesn't mean that that (a) SOFTWARE = HARDWARE nor does it mean that ANY of these things that you'd implement in hardware should be patentable. You still have the unique and non-obviousness test and just because the software is implemented in hardware doesn't mean that there is any patent validity associated with it.

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