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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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Another Day, Another Patent Troll

Comments (298)

These days I’m regularly exposed to patent trolls. Sometimes I read about them, sometimes friends email me about them, and sometimes companies I’m an investor in gets sued by them. Whenever I read the claims in the lawsuits, I often think that the claim in question is “obvious.” For those of you out there who know how patents are supposed to work, for something to be patentable it needs to be “non-obvious” as well as “unique.” While the specific claims may not be obvious to the patent troll, especially those who are lawyers who own patents they’ve picked up from other people (bankrupt companies, individuals who applied for and got a patent, patent factories), they are often extremely obvious to any software developer.

For a while I was frustrated by software patents. I tried to educate some of my friends in government about this. I was hopeful when the Supreme Court heard Bilski that they would take a stand on it. And I hoped that the people I talked to in the Obama administration, who acknowledged that they understood the issue, would try to do something about it. I hoped that the Patent Reform Act would actually have some teeth in it that would help address the completely messed up dynamics around software patents and my strong belief that this is a huge tax on the innovation process.

I had zero impact. Zero. As I sit here at the end of 2011, the software patent situation has spun completely out of control. In addition to endless patent trolls, who are multiplying like tribbles, large companies are now fighting massive legal battles with each other using patents. Some of the inventors (including a number of amazing software engineers) listed on the patents are finally speaking up against the patents, but since they’ve assigned them to companies they are no longer at, or the company that owns the patent acquired the company the original patent creator was at, their only recourse (and impact) is to get tangled up in a lawsuit as a witness.

In his 2003 letter to shareholders, Warren Buffet famously called derivatives, “”financial weapons of mass destruction” that could harm not only their buyers and sellers, but the whole economic system. “ You may recall that AIG, thanks to its non-transparent and heavy investments in derivatives, was almost bankrupt once the mortgage-backed securities it was insuring began to drop in value. The $85 billion bailout of AIG was the beginning of the government’s response to the financial crisis and we are still feeling the after-effects of that calamity.

Today, we are experiencing a similar threat to innovation with patents playing the role of “weapons of mass destruction.” Sadly, the America Invents Act, which seeks to provide the Patent Office with tools to operate better and passed recently, does precious little to address the patent litigation mess.

Like derivatives, there are thousands of software patents that are not transparent and remain available to do damage in the hands of patent trolls – and even respectable companies – who use them in lawsuits that bear little relationship to protecting inventions or spurring innovation. As others have detailed, there are increasingly destructive dynamics at play here and the easiest solution is to abolish patents in areas – most notably, software and business methods – where they are doing more harm than good.

Unlike the financial system, which derivatives helped bring to its knees, it is not clear how our innovation system will get to a breaking point that will require attention from policymakers. The Supreme Court could address the problem, but it missed a golden opportunity in the Bilski case, where it declined to end (by a 5-4 vote) the patenting of business methods. Perhaps the Supreme Court will realize that the situation requires fixing, looking for other ways to limit the damage.

The are simple options, such as disclosure where patent applicants should be required to disclose the source code behind their inventions, thereby ensuring that the invention is real and not merely a basis for a future lawsuit, which is what many software patents have become. Indeed, this requirement of the Patent Act (Section 112) is applied with some rigor in the biotech context, but has yet to be happen with regard to software. Such a change cannot come soon enough.

At some point the software industry is going to have to do something about this. We seem to not be able to rely on the government to take action that will affect change. I can only hope there are other leaders in the software industry, especially the amazing developers creating the innovations in the first place, who will take some collective action before it’s too late.

  • http://www.charliecrystle.com Charlie Crystle

    You didn’t have zero impact. You haven’t gotten the result you’d like yet. 

    Follow the money, 

    The trail will lead back to the patent trolls and patent lawyers. They will have given money to key PACs, representatives, and lobbyists.So at least one impact is you’ve increased the flow of $$ into the plutocratic coffers. ;)Turns out you and Occupy have something very much in common: frustration with how decisions are made or prevented in DC. If you really want to get the result you believe in, you’ll either have to drop a large amount of cash, or change the campaign finance and lobbying system. Daunting stuff, but the latter would radically improve this country. 

    • http://www.feld.com bfeld

      This just makes me sad.

      • http://twitter.com/walkerfrench Walker French

        Your leadership inspires us, though. I’m sure you won’t, but don’t give up!

        • http://www.feld.com bfeld

          Thanks for the encouragement – I won’t give up.

      • http://www.charliecrystle.com Charlie Crystle

        I helped to write and promote the single-payer healthcare bill in PA. It’s unbelievable how much $ that effort generated for unprincipled representatives. 

        In PA, an individual can give unlimited funds to any statewide candidate. In the last election 4 guys gave $5 million to a candidate for governor, Anthony Williams.

        They run a private equity fund that owns/invests in charter schools. Williams’ ads and speeches? 100% about charter school. 

        You want to have impact? Fight for change to the campaign finance system: roll back Citizens United, establish public financing (like many countries in Europe). Until we get money out of the democratic process, it’s simply a battle between those with the deepest pockets. 

        This, is sad (from Bill Moyers)

        • http://www.justanentrepreneur.com Philip Sugar

          How that campaign money gets used is the really dirty part.  That makes you wonder how it is not just a bribe, its like a hooker and a high priced escort, its the same but if there is a ton of money it somehow you can put a better name on it.

          • http://www.charliecrystle.com Charlie Crystle

            politics is a dirty business…

      • http://www.dpe82.com Dale Emmons

        This is a topic I look forward to discussing at Gist’s pre-Defrag conference dinner tomorrow night, but I’ll write my thoughts here as well.

        For about 2.5 years I worked in the Wisconsin state house as an aide to the then Senate Majority Leader. There’s an interesting story about how a computer geek gets himself into that situation, but what’s relevant is that my boss was a strong advocates for mentoring his young staff in all the ways of the political system and so I got to see how a lot of decisions got made; not only by my boss but by the other members of the caucus.

        I came away from that experience with a general framework about political decision making that I think is important to understand:

        It’s an almost universal truth that politicians get into politics because they’re passionate about their political beliefs and at their core they want to do what they see as right. The role of politician is so stressful that nobody does it who isn’t passionate. In that way it actually shares a lot in common with the role of startup founder.

        However, politicians quickly discover that they can’t change the world overnight. They learn that to be in office and influential on the core issues they care most about, they have to compromise on issues they care less about. They develop an internal means vs. ends test that informs their decision making, where the means is often vote trading on issues they don’t understand the implications of or view any change in the status quo to be (in the grand scheme of things) basically a wash. They trade in exchange for campaign money or pork (which lets them stick around), influence with other politicians (which helps them push their core issues) or usually some complex combination. So long as they can convince themselves that the vote doesn’t significantly harm their core passions, they’ll tend to go with whatever helps them.

        As depressing as that may sound it’s not illogical, and in that framework a lot of what happens in Washington actually makes some degree of sense. Understanding how that calculation takes place and what it’s inputs are helps one decide how to push for or against any given issue.

        I suspect that things like software patents and PROTECT-IP are currently firmly in the means end of the spectrum for most members of congress, and as an industry we are ill equipped to fight in that arena. Fortunately it’s possible to change that by framing issues such that they become ends issues in the minds of enough members of congress. In the case of PROTECT-IP we do that by flat out calling it a censorship bill (which it is). In the case of software patents we round up as many innovators as humanely possible to stand up and say “hey, these laws that are supposed to help us are actually hurting us — you’re hurting America’s only job creators.”

      • John Koenig

        I disagree.  People CAN cause change through the political process.  However, most people don’t care about patents.  Those who care, engineers and scientists, do not actually understand patents.  They are like Occupy Wall Street.  Their intuition is correct about the problem being serious — but they have no idea how to fix it.  As a result, lawyers are allowed to monopolize the process for their own purposes.

        http://johnkoenig.com

      • http://twitter.com/rabble rabble

        The high tech industry does donate a fair amount to Democrats, and less, but also substantial amounts Republicans too. But it was donated without the focused effort of what we want to get out Washington. It was more just because folks liked Dianne Feinstein or Barack Obama. If Silicon valley didn’t just spend it’s money dumbly, but started some innovation PAC’s hired some lobbyists, they’re all one level or dirty or another, it could get what it wants. It might take a chunk of change and a few years, but the tech industry has cash, it needs to buy it’s portion of washington if it wants the patent issue and other copyright issues to go away. Lessig and the EFF are awesome, but there’s an industry with real cash, it should buy it’s preservation. 

  • http://wearenytech.com/64-mark-birch-investor-entrepreneur-trader Mark Birch

    Maybe we should #OccupyPatentOffice?

  • http://www.alearningaday.com Rohan

    Like brakes on innovation, patents are. 

    Sad, this is. 

    Zero impact, you did not have

    Stay with the problem long enough, we must.

    Have our support, you do. 

    In it together, we are.

  • Barbara Bowen

    In addition to your focus on software, these technology patents impact Agriculture, Medicine, and Energy—all vital to survival. This issue is critical to resolve on so many levels!

    As a tech developer, I find myself navigating this issue. Last week I went ahead with the advice of my IP attorney in a provisional patent filing. This was not an easy decision, in light of escalating patent litigation that is crippling innovation in our field. I agree there needs to be code disclosures, or at minimum technical schema if source code does not exist. The fact that provisional patent applications are not transparent is troubling as well in the “destructive dynamics” you mention above.

    From the developer perspective it does not help that most VC firms will not sign NDA which tends to place a defensive burden on early stage developers to preserve patentability within a year of development disclosures. 

    Perhaps as developers we should validate our inventions with a “patentability opinion” from a patent agent or IP attorney. This could declare that an invention satisfies the substantive conditions of patentability in advance of pitching projects under NDA. From my perspective could slow the stream of defensive patent filing, though it would have little effect on offensive patent trolls.

    Another thought… a balanced stipulation to license patented technology after a certain period, along with a sliding scale where license fees decrease, or maybe collaborative cross license agreements become mandatory at some point relative to the original filing date.

    Over the past few months I’ve found myself in the middle of this fray, and though I’m no expert I agree there has to be a better way to support the interests of innovation!

    • http://www.feld.com bfeld

      Re: VC firms not signing NDA’s – I think you are mixing up a few things here. Specifically, I don’t think that has any specific issue on patentability or starting the clock on a patent. I also don’t think I’ve ever encountered this as an issue / concern.

      • Barbara Bowen

        In meetings with investors I have never requested, or been granted NDA, therefore I believe my work would be considered public disclosure, and the clock would start ticking… This standoff exerts pressure, is exactly the type of escalation we need to avoid in our future as technologists and innovators

        “Start early.If you make something public before you file your patent, you start the clock ticking against you in the U.S. You have less than one year from the date you make your invention or improvement public to file. Also, when you do make it public, you typically lose international patent options.”http://www.businessweek.com/smallbiz/tipsheet/06/32.htm

        • Anonymous

          I’ve heard this theoretical argument a lot, but I’ve also spoken to many patent attorneys who don’t think this is considered public disclosure. Even if one thinks it’s public disclosure, the entrepreneur doesn’t have to get into such detail that would screw anything up.  When doing the usual march of VC fundraising, keep it higher level and gauge interest.  For the very few VCs who actually engage, the number is sufficiently small that attorneys I’ve spoken to don’t consider it public disclosure.  The only way this might not work is with business method patents and to those people, I couldn’t care less as I believe business method patents are evil and should not be allowed.  

          • Barbara Bowen

            Jason, good to hear your VC perspective, and I agree with you on business method patents. Taking in consideration your law background, the advice you offer entrepreneurs here is vague 

            “…the entrepreneur doesn’t have to get into such detail that would screw anything up.  When doing the usual march of VC fundraising, keep it higher level and gauge interest.” Any thoughts on these guidelines of public disclosure types in the absence of confidentiality agreements?The types of disclosure that can put patent protection at risk include:Presentations at conferences, whether or not the presentation includes printed handouts
            Research abstracts presented in a public forum. This includes research abstracts that are published before meetings either online or in printed materials
            Posters shown at meetings (considered public publications)
            Cataloged thesis or dissertations
            Posting of information on websites. This includes postings on your individual lab web sites. If it can be accessed through the web, it is considered a public disclosure
            Publications. Publications are considered public disclosures the minute they become available to the public. For many publications, this occurs when published online in advance of the printed journal
            Published grant applications
            Meetings with company representatives or colleaguesWe can preserve IP rights through NDA… preventing the clock from ticking. Though it is generally considered outrageous to request this of potential investors, leading to a dilemma where it becomes safer for the inventor to file for patent protection.

          • Barbara Bowen

            Pls excuse bad text format in the list I shared above. 

            My point is simply that this is a slippery slope to navigate as an entrepreneur, and it will become increasingly steeper as more patents will be registered… “better safe—than sorry”

          • Anonymous

            I was being vague on purpose.  The last thing I want an entrepreneur to do is rely on a comment thread for legal advice.  The key is getting a good lawyer involved.  My main point was that everything that I know and believe is that the lack of NDAs when dealing with VCs is not reason enough, in my opinion, to require a patent filing.  

          • http://petegrif.tumblr.com/ Pete Griffiths

            Jason
            I completely agree that a lack of NDAs is reason to require a patent filing.  But I am not so clear that the converse is so clear – that disclosing to VCs without an NDA does not constitute a public disclosure.  I am sure that there can be differences of opinion on this and the exact circumstances may matter, but I would be very cautious and would seek advice on this.

      • http://petegrif.tumblr.com/ Pete Griffiths

        I believe Barbara is correct.  With no NDA it could be considered public disclosure and that would start the clock.  It would be risky.

  • http://frugalmechanic.com/ Eric Peters

    While I agree software shouldn’t be patented, My one comment is legislation through interpretation is a big no no.  I’d rather see the patent law get clarification through elected congress rather than “new laws” created by appointed judges.

    • Anonymous

      The patent office used to not issue software patents as a matter of policy.  But various judicial decisions forced them to.   The whole software patent mess was created by appointed judges, so there would be nothing wrong in principle with appointed judges straightening it out.   In our current system, though, it’s far from clear that judges are any less subject to corporate influence than the Congress is.   Corporations are people, money is speech, and all that. 

  • http://avc.com fredwilson

    “i had zero impact”

    that is a sad statement and i am afraid it will be true of the many other public policy efforts we are all getting engaged on.

    it doesn’t stop me from engaging, but it does make me fairly cynical about engaging

    • http://twitter.com/danielharan Daniel Haran

      Proving that a system is broken and unresponsive to rational arguments IS an accomplishment.

      It opens up the door for “rebels” to engage in actions you may find distasteful but are effective at raising awareness and bringing more people to the movement.

      Now’s the time to hear ideas for challenging the status quo outside of official channels.

    • http://www.feld.com bfeld

      It doesn’t stop me from engaging either, but it’s worth noting at various points in time, especially if it feels like the effort has had no tangible result.

  • Engineer

    I’ve seen a lot of these claims that whatever patent is “obvious” … always from the anti-intellectual property sector.  However, I’ve yet to see it from someone who actually bothered to look at the patent.  For instance, the Amazon 1-click patent sounds “obvious” because most people think that “its just clicking a button”, but the reality is, the patent is much more complex and not at all obvious. 

    Further, what is not obvious at the time of invention can late come to be seen as “obvious” when the invention itself becomes popular— especially with the surface view where commentators never address the actual invention in question.  For instance, many people say Apple’s “multi-touch” patents are “obvious” simply because a lot of people have subsequently violated the patents and made multi-touch devices.

    The wheel is obvious when you see it, but until someone invented it, it wasn’t obvious at all.

    To have an investor take a position in opposition to the right to the products of ones own mind is shameful.  But at least you’ve done it publicly, and thus anyone of integrity can know you reject the mind, and consequently, expect you to force bad decisions on them. 

    The irony is, of course, what are you really investing in?   The minds and their product. Yet, because you’ve been conditioned to be a socialist and aren’t in the habit of using yours, you claim that the mind is no value, and that all its produce is “obvious”. 

    • Anonymous

      And what, pray tell, is the “anti-intellectual property sector”?  A bunch of realtors selling houses to random Republican shouting heads?

      I think you’re making up the “engineer” thing, or at least you have no idea what you’re talking about on the software front.   Software developers don’t look at patents, period.  They look at things that might help them with their work.  They are happy to buy tools and libraries that help them, or look at ways similar things have been done in the open source world.

      Patents tell them nothing.  Usually, the legalese is so impenetrable that it’s not at all clear what the idea is in the first place.  But with software patents, the main problem is that they tend to have practically nothing in them about how the thing is implemented.  The patent office should never have started issuing patents like that, and in fact left to its own devices the patent office wouldn’t issue software patents at all.  But some stupid judge decided they had to, and so the patent office started issuing all kinds of patents without any consideration of obviousness or prior art, checking mainly just for content with previous patents.

      You can implement pretty much anything in software.   The problem with the current system is that somehow, the patent office started issuing patents on just doing a particular thing in software, not a specific method or mechanism of doing a certain thing.   So now various big companies are going around trying to kill the competition by essentially saying “you can’t do that in software, we patented it”.  This is not at all what the patent system was supposed to do.

      As for the socialist crap, why don’t you just go back to listening to Rush Limbaugh and other similar intellectual titans.

      • http://petegrif.tumblr.com/ Pete Griffiths

        I think there is a misunderstanding here about the difference between 2 sections of a patent.  The description section HAS TO describe how to implement the invention such that it can be implemented by one ordinarily skilled in the art.  The claims may abstract from the specific implementation.  But this does not mean that it is possible for them ‘to have practically nothing in them about how the thing is implemented.’  Furthermore, due to the difference between the claims and the description it has always been the case that the patent office has issued ‘patents on just doing a particular thing in software, not a specific method or mechanism of doing a certain thing. ’  

    • http://www.feld.com bfeld

      I’ve read hundreds of patents and can assure you that I (a) understand them and (b) many of the claims are obvious. I didn’t even bring up prior art in this discussion, which is an even more annoying issue as there is endless prior art for many of the claims in patents that never surface until much litigation has occurred.

      • http://petegrif.tumblr.com/ Pete Griffiths

        Brad – an non-attorney who has ‘read hundreds of patents’ and can ‘understand them’ is an unusual person.   Unlike the description section the claims are written in technical language and without experience most people find them opaque.
        IMHO ‘Engineer’ is correct about 2 things:
        a) most people who talk about things being obvious haven’t read them and don’t understand the criteria for what is or is not to be considered obvious
        b) there is such a thing as the ‘hindsight effect’ whereby people find things to be obvious very soon after they enter popular culture
        The problem with general claims to the effect that there are hordes of ‘obvious patents’ is that whilst there may well be such patents it ignores patents where the invention was not obvious at the time it was filed.  And there are such patents.  
        The reality of our industry is that it is large and complex.  Are trolls a problem?  Yes.  Does that mean that nobody in the industry needs any IP protection? Or that there are other viable forms of IP protection than patents (e.g. copyright)?  IMHO no.

        • http://www.feld.com bfeld

          Isn’t that part of the problem? (e.g. a non-attorney who has ‘read hundreds of patents’ and can ‘understand them’ is an unusual person.) I learned how to read patents in the 1980′s when I was a PhD student at MIT Sloan studying sources of innovation. It’s a skill that you never lose, even though there are times that I’d wish that I’d forget how to do it.

          I know of the hindsight effect really well. I don’t think that’s at play in what I’m talking about as many of the patents I’m exposed to aren’t actually in popular culture. And – many of the ones that are have prior art that is well known even though the patents have been granted.

          • http://petegrif.tumblr.com/ Pete Griffiths

            It is part of the problem.  Legal language is frequently as impenetrable as any other technical language.  One reads frequently of people finding patents (even their own) incomprehensible.  I don’t know how you fix this tho.  The language exists to facilitate of specialist form of precision.

            I am sure that you are seeing patents that include things you find ‘obvious.’  I am not defending all patents granted.  But on the other hand I frequently see debates about X or Y being obvious when it is far from clear that it was obvious when the patent was granted.  Furthermore, many things are obvious once declared that were not obvious previously.  My point is that there are two sides to this, not just either one.

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  • Jtollison78

    Thank you for your effort.

    This whole thing makes me think of the professional online poker community. They weren’t a very political bunch and ignored obvious threats. Then, online poker stopped and they organized very quickly and started lobbying because they had nothing else to do.

    • Ricdesan

      Well, Poker had the moral high ground anyway, or at least until the Full Tilt scandal. Online poker was a textbook big brother move by the government to punish those sinful gamblers! (shaking head)

  • http://www.kidmercuryblog.com kidmercury

    all the problems are connected; take the wrong approach, get the wrong result. like a startup that launches with sustaining innovations.

    in time, after all other options are exhausted, it will be seen as inevitable: only the truth can set us free.9/11 was an inside job,kid mercury

  • http://www.freezecrowd.com Eric Leebow

    Sad, but I begin to wonder if any of these trolls have been rejected for investment from the VCs with the same or similar idea that was patented. If you fund one, then the one you rejected earlier is going to come back and be a troll? Is this what’s happening?  Entrepreneurs know VCs say “no” as that’s their job, yet then they go out and invest in other companies doing something similar to the one they said “no” to.  

    • http://www.feld.com bfeld

      I don’t think there’s any correlation – at least none that I’ve ever seen or heard.

  • http://www.eliainsider.com Elia Freedman

    Brad, don’t give up. We can’t afford to have our best and brightest quit. That is the point when we are really in trouble. Government moves in a long, slow arc. I hope you will adjust your expectations clock accordingly.

    • http://www.feld.com bfeld

      My clock is appropriately set. It’s just frustrating.

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  • http://www.github.com/misham Misha

    I’m curious, what’s the cost to VC-backed companies for dealing with a patent suit?  I am assuming that most VC-funded companies in the web industry get hit for $100,000+ by different patent trolls. (Judging by posts on HN)

    What’s the cost of fighting one or two of these patents?  I’m assuming, perhaps naively, that there are a couple of “key” patents, if dealt with, would invalidate some of the biggest threats and the cost of fighting such a suite would be several million, say 10 million, which equals a large? Series A round?

    How much would a VC fund save over it’s lifetime of investments if just a few of these patents were to be fought?  Once again, assuming there is a good chance of winning.

    What if several VC funds got together and pooled it’s resources and took on a couple of the bigger patent trolls?  Could you spread the risk and cost enough to make this viable?

    Are the politics of this so bad that you cannot win even with a bunch of money ( >= $50 million) thrown at this issue?  Can you guys raise enough money from interested investors to form a fund specifically dedicated to fighting these people?

    This problem is due to lots and lots of money being given to various lobbies and politicians from the side that wants to keep the status quo. Why can’t the side that wants change get together, pool their resources and do something about it?

    I’m just a lowly engineer; I do not have the experience, connections, money nor knowledge to address deep issues, such as this one, in a meaningful way.  I’m developing skills to build the experience, knowledge and connections, but I’m very far from having them.  Yet I’m reading posts, such as this one, from many people, whom I consider authorities and whom I respect a great deal, speaking out against issues such as this one and do not seem to be able to do much about this.  This is unbelievably disheartening.

    If you have the money, experience, connections and give a damn, do something about this.  It’s always a small group of people who give a damn that accomplish anything.  Here’s a problem that desperately needs solving and there is a group of individuals, such as yourself, who have the means to get together and kick ass.

    Why don’t you?

    Only a small group of people who have stood up on their hind legs have been able to change the world.  The masses do not get together all of a sudden.  Every hive has a queen.  Even OcupyWallStreet started with a small group.

    Grow some balls, do something about this!  Or stop complaining.

    Every time someone of your stature (you have to be aware of your own impact on the overall startup and tech community) posts such a piece, it puts questions into aspiring entrepreneurs and distracts them from building something to research more about patents or try to patent their own ideas.

    You’ll need help!  We’re here to help you.  I will bet that many people will stand behind you on this.  But someone will have to stand first and that person has to have enough __political__ and __financial__ pull to get the job done.  It’s not going to be some engineer or entrepreneur who will be eaten alive before they get anywhere.

    Cause if you’re not going to do anything about this, please don’t vent this frustration so publicly, it affects too many people.

    • http://www.feld.com bfeld

      Re: “Grow some balls, do something about this! Or stop complaining.” – that surprised me! I’ve been working hard, spending my own money, and being as thoughtful as I know how to be about this. One of my approaches is to “shine a bright light on the issue.” I don’t view that as complaining.
      I don’t think simply throwing money at the problem solves anything.

      • http://www.github.com/misham Misha

        I need to apologize for the above comment. It’s uncalled for and inappropriate.It was not written from the right place, it is angry and unjust.  This conversation and Mr. Feld deserves better.
        Please accept my sincere apology.

        I would like to reply to the idea of “throwing money at the problem”.  In my view, though it may be completely inaccurate (please correct me), the other side is winning the battle by outspending others.  Shining a light is not going to help with the general public, who have other concerns at the moment.
        If this is a game of politics, if the only way to fix this issue is to change the politics, then one has to fight the other side on that battlefield.  Could we pick our own battlefield?  Maybe, I’m not knowledgeable enough to answer that question.  From my point of view, since we’re dealing with the law, the law has to be changed.  This is a political process, correct?
        If the other side is spending money on buying up more and more patents, paying lobbyists and relying on the general public to not give a damn, how do you fight this?
        If trying to raise the issue with the public is not making a dent and it’s expensive for INDIVIDUAL COMPANIES to deal with this, why not pool resources, form your own PAC and go after this issue?
        I was trying, poorly, to argue for doing a cost-benefit analyses of standing by and letting the evil of patents prevail or actively go after these people.
        If it costs X million dollars a year for startups to deal with patent trolls and it would cost Y million dollars to fight this, at what point do you say that it would cost less over the life-time of the fund and/or startup to deal with a patent that’s causing all of this?  Would Google, Facebook, etc. be interested in doing this?
        Could you go after one patent troll, win and kill off the rest due to the court ruling?

        What I would really really like to know is this: What’s it going to take to deal with this?  To get a ruling that would fix this issue? Can a foundation or other non-profit entity fight this?
        What are the options outside of raising the issue to the public?

        Again, I am sorry for taking that  tone and making it personal.  Neither you, Mr. Feld, nor this conversation deserved it.

        Misha Manulis

        • http://www.feld.com bfeld

          I appreciate the apology.

          I’m not sure what the right answer is. Unfortunately, there isn’t “one side vs. another” – there are lots of different people involved, with lots of different viewpoints, and lots of different agendas. I personally don’t think it’s simply a political issue where one side needs to outspend the other. But I definitely agree that it takes more than just talking about it – that’s only one of my approaches.

          • http://www.github.com/misham Misha

            Please excuse my myopia, by why isn’t this just a political issue?  The debate is about software and business process patents being necessary vs bad, correct?

            I’m sure there are a many views around this issue, I’m sure there are many grey areas.  I’m also sure I’m looking at this as an engineer trying to fix a problem, not considering all the options, political issues, personal relationships nor business relationships.

            Perhaps I can phrase my question this way:  What can someone in the general tech community do to help fix this, other than writing to their representatives in Congress and Senate?  If there are multiple organizations fighting to maintain the status quo, are there multiple organizations or a singular organization dedicated to fixing the problem?

          • http://www.feld.com bfeld

            Since there’s no clear agreement on how to fix the problem, there isn’t any significant organized activity. I was in a discussion about it tonight – namely – how can we empower software engineers to actually have impact on the issue. Some interesting ideas came up, some which I’ll mull over more and try to do something about.

  • http://twitter.com/realure Thomas Franklin

    I disagree on the impact front.  Here are a list of legislative and judicial reforms that have made the business model of a troll far less profitable:

    Obviousness standard tougher; Injunctions for trolls are rare; Venue changes easier; Method claims more difficult to enforce; Joinder rules stricter; Apportionment of damages common; and more.

    We are discussing these issues at the RMIUG Meeting tonight 11/8 at 7:00 PM.  It is free as is the pizza.  Join us at The National Center for Atmospheric Research (NCAR) at 1850 Table Mesa Drive in Boulder for a thoughtful discussion.

  • http://twitter.com/lunarmobiscuit Michael ‘Luni’ Libes

    We have two choices.  We either continue pushing Washington to fix the patent system, or we will wind up with an insurance-like model, where every company signs up to Intellectual Ventures (or equivalent) to arm themselves with a patent portfolio to counter-sue.  I still hold out hope for the former, as the latter adds an unnecessary cost to starting up technology companies.

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  • Jan R. Horsfall

    Unfortunately, government leadership provide very little acumen along the lines of basic economics, let alone something as ‘esoteric’ as a patent and as ‘different’ as technology. They’re blind to the issue in my opinion and like many technical battles fought in DC, it’s the equivalent of teaching algebra to a five-year old.

    Personally, I don’t see it as lobbying evil or anything of the sort. I just see it as a certain obtuseness that goes unnoticed within the beltway. As I’ve heard said: “… if you’re in the hospital long enough, you start thinking sick is normal.”

  • New Writer

    I’m more or less agnostic on the patent troll issue. Although I recognize the inefficiency problem that their business model creates within the economy, nevertheless the NPE model is profitable, effective, and a legal exercise of IP rights. The problem is a systemic one; when NPEs win, on average, three times the damage awards that practicing entities reap from patent litigation, you can’t blame them for suing as much as possible.  It seems to me that one of the best ways to combat the NPE problem is to disincentivize them by reducing their potential winnings from enforcement action. So far, however, only a few courts seem to have taken the reasonable-royalty approach.

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