Most software engineers believe that software patents are bad for innovation, and shouldn’t exist. Unfortunately, this isn’t a good argument against filing for software patents, since it’s essentially a complaint about the rules of the game, but as a startup CTO you still have to play the game, regardless of what you think of the rules.
Many CTOs of seed or A-round companies find themselves under pressure from non-technical co-founders and investors to spend time and money on software patents. I don’t always win the debate, and have been involved in filing a number of patents, however I can say with confidence that the return on investment on all of this time and effort was precisely $0 in every case.
Hopefully others can also share their advice or experiences.
Most people who advocate for patents within a company haven’t really thought it through in depth, they’re just advocating it because they think it’s what you need to do. Often they’ll ask a patent lawyer for advice, and they’re no more likely to argue against filing for patents than a turkey is going to argue in favor of thanksgiving dinner.
A few arguments against startups filing for patents:
- They cost $10-$15k a pop, and can soak up a significant amount of your CTO’s time, often at a critical early phase of the company.
- You don’t even get them for several years, by which time your startup has probably either succeeded or failed, and these patents will have played no part in it either way (except perhaps for the previous point where they probably hurt you by sapping money and time).
- US jurisprudence has grown more restrictive about what can be patented over the past few years. What was clearly patentable 3 years ago is clearly unpatentable today. There is a pretty good chance that your patents will be rejected. In particular, business method patents (which patent lawyers used to love) are no-longer being granted.
- “Defensive” patents don’t protect you from patent trolls (aka non-practicing entities), since they are immune to a counter-suit because they don’t actually do anything other than litigate or threaten to litigate.
- Even if you don’t have an ethical problem with patents covering a real innovation, these are not the kind of patents most patent lawyers will want you to file for. Firstly because they will require a lot more work to create (and you’re only paying them $10-15k). And secondly, because they tend to be specific enough that they’re less useful as an offensive weapon.
- Even if the patents do cover a real innovation, if it’s granted you’ve now disclosed something valuable to your competitors. They may not be able to copy it directly, but as you know there are typically many ways to solve any given problem in computer science, and now they know how you solved it.
- Even if they’re granted, their only real value will be as part of a firesale in the event of your company’s failure, where they’ll probably be snapped up by a patent troll for less than you paid to file for the patent in the first place.
When people ask about my “IP defensibility” strategy, I generally argue for trade secrets. They’re free, require no effort, you’re not disclosing potentially important information to competitors, and they basically lack any of the other shortcomings I describe above.
I was recently pointed to this comment by John Carmack, co-founder of Id Software, regarding software patents. I thought he gives a beautifully concise explanation as to why the vast majority of software engineers would prefer it if software were not patentable:
Before issuing a condemnation, I try hard to think about it from [a Lawyer’s] point of view — the laws of the land set the rules of the game, and lawyers are deeply confused at why some of us aren’t using all the tools that the game gives us.
Patents are usually discussed in the context of someone “stealing” an idea from the long suffering lone inventor that devoted his life to creating this one brilliant idea, blah blah blah.
But in the majority of cases in software, patents affect independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement.
Why should society reward that? What benefit does it bring? It doesn’t help bring more, better, or cheaper products to market. Those all come from competition, not arbitrary monopolies. The programmer that filed the patent didn’t work any harder because a patent might be available, solving the problem was his job and he had to do it anyway. Getting a patent is uncorrelated to any positive attributes, and just serves to allow either money or wasted effort to be extorted from generally unsuspecting and innocent people or companies.
Yes, it is a legal tool that may help you against your competitors, but I’ll have no part of it. Its basically mugging someone.
According to Groklaw, the appeals court has just significantly narrowed the scope of what can be patented in the United States. They didn’t go so-far as to invalidate software patents (unfortunately), but it looks like they have invalidated most “business method” patents, and probably narrowed software patents.
Experts are still digesting exactly what this means, but it looks like a victory for anyone that (like me), believes that the recent expansive view of what can be patented has retarded rather than advanced the cause of innovation.
It seems that the UK Patent Office has decided to use the Aerotel/Macrossan, in which the court reaffirmed the fact that software patents are not permitted under European law, as their new guideline around software patents.
This is good news, it basically means that the UK courts have come out unambiguously against the granting of software patents, hopefully this will put pressure on the EPO, who have been happily granting them left, right, and center.
Read more here.
Well, unless you have been living in a cave, you will know that last week the European Parliament voted to reject the Directive.
This is great news, not the best outcome for us, but it’s close (it would have been better to get a good Directive, but no Directive is far far better than a bad Directive).
The big question is “Where now?”. Well, we can be sure that the powerful intellectual property extremists behind this Directive won’t give up, although we can take heart that they have suffered their first major defeat, although its a shame that we didn’t mobilise in time to stop similar Directives like the EUCD.
The challenge is firstly to solidify this victory, and ensure that software patents can’t be pushed through the back door (perhaps through national parliaments, or through inter-governmental treaties negotiated by eurocrats without public scrutiny).
We need a powerful lobbying organisation to represent the interests of those who create and use computers and software in Europe. That might be the FFII, depending on the direction they want to take. I don’t think it can be the FSF-Europe, because their primary focus is too narrow and makes them easy to pigeon-hole as “hippies”. Or maybe we need a new organisation. Whatever happens, I suspect that any such organisation will have no trouble raising funds now that people have seen what such an organisation can do.
Today was probably the first day since the disastrous Legal Affairs Committee (aka JURI) vote on Monday of last week that I started to feel cautiously optimistic once again about the whole software patent thing.Since then we have been working flat out to get the amendments that JURI threw out re-tabled, and to counter the completely underhanded but very effective campaign that had been waged by the pro-software patent lobby.Just this afternoon, early reports have started to come in that we have been successful, and not just managed to get the amendments re-tabled, but by a broad cross-section of the different groups in the European Parliament! This is critical as it demonstrates cross-party opposition to the Council text. Expect to see it appear on the FFII Latest News page soon.To add well-deserved insult to a well-deserved injury of the pro-software patent campaign, it looks like people are finally starting to take notice of their cynical and shady lobbying practices. In particular the fake grassroots group “Campaign 4 Creativity” or C4C (which is in-reality run by a London-based lobbying firm), is coming under particular scrutiny from European Watchdogs. This is particularly gratifying after some pro-patent lobbyists questioned the funding sources of the FFII (the good guys), even though their finances are completely transparent (in stark contrast to the C4C).Of course, we absolutely cannot get complacent.We still need to get an absolute majority of MEPs to support these amendments. Any MEPs that don’t turn up will automatically be considered to vote in favour of the Directive passing in its current (very bad) form.It is now up to all Europeans to contact their MEPs and ask them to support the “Rocard/Buzek’s compromise amendments”. The good news is that no matter which European Group they are in, they can be assured that they won’t be alone.
I was asked to write an article to appear in EU Reporter this week on the current situation with software patents. Basically the situation is not good, but we still have a chance. For some background on why I am so worried about Software Patents, take a look at this blog entry from a few months ago. Here is the text of the EU Reporter article:
Last Monday the European Parliament’s Legal Affairs committee voted against all amendments to the draft Directive on “Computer Implemented Inventions” that would have prevented the introduction of software patents in Europe.
Patents are a powerful form of intellectual property, and while in certain fields they can promote innovation, they are not appropriate to all fields of endeavour. Patents are primarily used where a large investment is required to take an idea to an actual innovation and where copyright is not an effective protective measure. Examples of such fields would include pharmaceuticals and aerospace. Patents are typically not used in fields where ideas can be realised with relatively little capital investment and where copyright is an effective protective measure; such fields include literature and software.
This distinction was recognised when in 1972 art. 52 of the European Patent Convention (EPC) stipulated that programs for computers shall not be regarded as inventions and shall therefore not be subject to pat-entability .In recent years the European Patent Office (EPO), through a dubious interpretation of the EPC, has drifted towards granting over 30,000 patents on software , nearly three-quarters of which are owned by non-European companies. These patents remain largely “inert” as any attempt by the patent holder to initiate litigation over these patents would likely result in their invalidation.
For this reason Europe has been spared the negative impact of patents on computer programs that is currently being experienced in the United States, where the Federal Trade Commission has raised concerns over the impact of software patents and where even Microsoft, a strong advocate for software patents in the EU, has called for patent reform. Proponents of the current text of the Directive argue that the directive only codifies the “status quo”. This assertion is disingenuous. It may be the case that the Directive seeks to codify current European Patent Office practice in granting software patents, but in doing do it will dramatically change which patents can be enforced in practice.
In this debate, the scope of patentability hinges on the definition of the term “technical”, as the current Directive text excludes software from patentability unless it is of a “technical nature”. This allows its proponents to claim that “pure software” will not be patentable. However, a sufficient technical contribution would be that the software is “loaded or executed in a programmable computer, programmable computer network, or other programmable apparatus” — in other words, any form of computer software designed for use on a computer is patentable.
In the first reading the European Parliament added a meaningful definition of the term “technical” to the Directive text for the purpose of clarification, but this was removed by the Council of Ministers. It is therefore critical that the Directive be clarified to include a concrete definition for this term.The effect of the current wording of the directive being passed unamended, will be to open the floodgates to litigation of over 30,000 existing, albeit questionable, European software patents. This will be a disaster for the European software industry, particularly small to medium sided software companies, unless key amend-ments can be reintroduced when the entire European Parliament votes on the Directive next month.
If you share my concerns, please sign up to Economic Majority, get informed, and try to arrange a meeting with your MEP, or at least a phone call.
According to a FFII report, and a Financial Times article, proponents of software patents have just won a significant victory against smaller software companies and open source software proponents as the EU’s legal affairs committee rejected most of the effective amendments that were proposed to the Computer Implemented Inventions Directive, which is widely perceived to usher-in US-style software patents in the EU. All is not yet lost as the rejected amendments can be re-tabled when the entire European Parliament has the opportunity to vote next month. If you value the freedom to code without worrying about getting sued, and you live in the EU, now is the time to take effective action.Update: Looks like Slashdot picked up my story submission.
I had a debate with Prof Martin J. Adelman last night. He is the Theodore and James Pedas Family Professor of Intellectual Property and Technology; Co-Director of the Intellectual Property Law Program; and Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies at George Washington University Law School.It was organised by a Scottish software industry trade group called ScotlandIS. He was advocating software patents (apparently, and by his own admission, he is one of the rare academics who think software patents are a good thing), I was opposed. Also present were some business people (who I assume were representative of ScotlandIS’s membership), at least one other lawyer (who was actually rather supportive of most of what I said based on his first-hand experience), the organisers, and I think at least one journalist.The two Edinburgh-based CEOs were also present in the round-table discussion, neither of whom had given much consideration to the software patent debate in the past. By the end of the debate both agreed with my position (they said so :).As a result I am hopeful that the ScotlandIS trade group will adopt a policy against the introduction of software patents, that certainly seemed to be the way they were leaning, even before the debate.I also drank so much coffee that my heart is still beating about 50% faster than it normally does almost 20 hours later.
Any members of the British Computer Society might be interested to note that this organisation, which is supposed to represent the interests of British software engineers, has been supporting pro-software patent groups according to FFII.If you are a member of the BCS and you are concerned about software patents, perhaps you should make your feelings known…