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.

I’ve been railing against software patents for a number of years. I believe software patents are an invalid construct – software shouldn’t be able to patented.

For a while, I felt like I was shouting alone in the wilderness. While a bunch of software engineers I know thought software patents were bogus, I had trouble getting anyone else to speak out against software patents. But that has changed. In the last few month the issue of software patents – and the fundamental issues with them – have started to be front and center in the discussion about innovation.

There have been two dynamite stories on NPR recently – the first on This American Life titled When Patents Attack! and one on Planet Money titled The Patent War. If you have an interest in this area, the two are well worth listening to.

In the past week, the discussion exploded starting with a post from Google titled When patents attack Android. The word “patent” shows up in 20 of the Techmeme River articles from the last week. Martin Fowler, a software developer, had a well thought out article titled SoftwarePatent. And they kept coming, such as Why Google Is Right Yet Short-Sighted To Complain About Mobile Patents.

But my favorite was Mark Cuban’s post titled If you want to see more jobs created – change patent laws. He starts strong:

“Sometimes it’s not the obvious things that create the biggest problems.  In this case one of the hidden job killers in our economy today is the explosion of patent litigation.”

And he ends strong:

“We need to face the facts, patent law is killing job creation. If the current administration wants to improve job creation, change patent law and watch jobs among small technology companies develop instantly.”

I hope my friends in the White House are listening. And to all the software engineers who are co-authors on patents that they aren’t proud of, or think are bogus, or were forced to create the patent by their company, or were paid a bonus by their company to write a patent on nothing, or are now working for a company that is getting sued for a patent they co-authored that they aren’t even sure what it says, speak up!

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.

In 2008 I was invited by Pamela Samuelson, who I met through several Silicon Flatiron events, to be on an advisory board at the Berkeley Center for Law & Technology.  I attended the one meeting that we had and a subsequent symposium and wrote about it in the post Entrepreneurial Companies and the Patent System.  As with most things like this, I found it fascinating, stimulating, and frustrating all at the same time and hoped that I’d contributed something useful to the discussion.

I read the paper titled High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey when it came out at the end of June 2010.  I thought it was a solid paper although there were some things that I struggled with which is typical for me in any academic paper, especially when I get bogged down in arguing with myself while trying to parse the footnotes.  But I was optimistic that as the authors started talking about the article, some thoughtful and constructive discourse would result.

I was appalled when I started seeing soundbites emerge from at least one of the authors of the paper from weak conclusions buried in the midst of the data.  My partner Jason took one of them on when he wrote his post 76% of Venture Capitalists Believe that Software Patents are Important (NOT!) In this post I think Jason does an excellent job of dissecting the data and explaining why this is not only an incorrect conclusion from the data, but a terribly misleading soundbite.

Fortunately, Pam Samuelson (one of the other co-authors) has set the record straight with her excellent summary of the Berkeley Patent Survey on her post on O’Reilly Radar titled Why software startups decide to patent … or not. Her essay is very digestible and focuses specifically on the issue of software patents and what she believes they reported in the paper.  She reached the following conclusions which she states in her intro:

• Two-thirds of the approximately 700 software entrepreneurs who participated in the 2008 Berkeley Patent Survey report that they neither have nor are seeking patents for innovations embodied in their products and services.
• These entrepreneurs rate patents as the least important mechanism among seven options for attaining competitive advantage in the marketplace.
• Even software startups that hold patents regard them as providing only a slight incentive to invest in innovation.

Pam is balanced in her intro as she concludes by saying “While the three findings highlighted above might seem to support a software patent abolitionist position, it is significant that a third of the software entrepreneurs reported having or seeking patents, and that they perceive patents to be important to persons or firms from whom they hope to obtain financing.”

The juiciest conclusion is about halfway through the essay and is “One of the most striking findings of our study is that software firms ranked patents dead last among seven strategies for attaining competitive advantage identified by the survey.”  Another one was “We were surprised to discover that the software respondents reported that patents provide only weak incentives for engaging in core activities, such as invention of new products (.96) and commercialization (.93).”

I’m glad Pam took this on and put this out there.  I look forward to more studies she does from this research set.

I’m far away from Washington DC today.  Actually, I’m a lot closer to Russia than I am to DC and that makes me an expert on Russia.  Wait, someone else said that (although the people next to me and Amy at dinner last night were speaking Russian.)

But my friend the Internets (actually, the Web) brought DC closer to me today.  While I’m only involved in a handful of things related to politics and DC, several of them popped up somewhere in my world in the last two days.  So, I thought I’d share them with you.

Let’s start with software patents.  I’m still seriously bummed about Bilski – not the specific ruling, but the fact that in my opinion the Supreme Court wimped out on something that is very important.  Several friends have told me that the Supreme Court did exactly what they were supposed to – they ruled on a vary narrow and specific issue that was put before them.  A few other friends of mine, including several lawyers that know a lot about the Supreme Court, said it looked like the Supreme Court came close to making a significant and profound ruling – with plenty of hints buried in the stuff Justice Stevens wrote.  I can’t interpret any of the Supreme Court inside baseball, but I do know how I feel about software patents and expressed my frustration in an article that I co-authored with Paul Kedrosky titled Software Patents Need to Be Abolished that showed up in the Huffington Post yesterday.  In case you need more evidence around the stupidity of the whole situation, take a look at the crap van Rijn is going through.  Or maybe this patent from Microsoft on “how to turn a page in an electronic book.”

DC Topic #2 is the Startup Visa.  Inc. Magazine has a great article about the issue and the Startup Visa titled The Immigrant Advantage.  My friends Kevin Mann (British) and Thanavath Jaroenvanit (French) – both of TechStars Boulder 2008 – co-founders of Graphic.ly – and one of my inspirations for the Startup Visa movement) are prominently featured.  And the Kauffman Foundation just came out with a study that concludes that Job Growth is Entirely Driven by Startups.  I’ve had a few encouraging conversations about the Startup Visa movement recently, including hearing about a new co-sponsor of the Senate Bill (“The Startup Visa Act of 2010″) as well as talking to a handful of prominent organizations that are close to signing up to get behind it.

Finally, LeBron James has apparently signed with the Miami Heat.  I have no idea what that has to do with DC, other than I’m sure the Wizards were trying to get him also.