Software, patents and innovation

My friend Mike McDerment of SecondSite has a post up with some of his thoughts about patents, and it reminded me that I’ve been meaning to write one as well, but I’ve kind of been putting it off because it’s a complicated subject and I wanted to think about it a bit. Like Mike, I’ve been thinking about those kinds of issues a fair bit lately — Mike because he runs a Web-based services startup, and me because I’ve been writing about Research In Motion a lot.

Like Mike, my thinking (this time around at least) got jump-started by a great post from software designer, artist, venture capitalist and all-around Renaissance guy Paul Graham on the topic of software patents. It’s a long post, but it’s definitely worth reading if you care about the topic, and you should, because it will impact your life in some way eventually (and likely has already).

As Paul points out, if you’re against the idea of software patents — as many people are, including VC Brad Feld, who writes about it here — then you’re probably against the idea of patents in general, since much of what is being patented on the technology front is in some sense software. By the end, Paul seems to be arguing that patents are almost a necessary evil, in the sense that small companies need them to defend themselves from larger companies, like a nuclear weapons program.

Brad, meanwhile, says that they are “an abomination,” and that software patents — such as Amazon’s infmaous “one click” patent on buying things online — should be done away with entirely. Like me, he also turns to the military analogy:

“If we continue on the path we are on, patents will continue to increase in their overall expense to the system, everyone will feel compelled to continue to apply for as many (and as broad) patents as possible, if only for defensive reasons (one of Fred’s VC Cliche’s of the Week was “Patents are like nuclear bombs, you just got to have some.”) Let’s take a page from geopolitical warfare and focus on global disarmament, rather than mutually assured destruction.”

The Fred that Brad is referring to is Fred Wilson of A VC, who says that while he feels they are almost useless, he also advises his portfolio companies to apply for as many as they possibly can (this will make for interesting fodder when Mike and I talk with Paul Kedrosky and others about the issues surrounding VCs and startups at the mesh conference in May). In one of the best parts of a recent post on the topic, Fred sums up his feelings thus:

“I think of the patent system in our country a bit like the tenure system in our academic institutions. It protects ideas and people that may not deserve to be protected and it allows for underperformance and it stifles creativity and energy.”

As Fred and Brad and Paul also point out, one of the biggest problems with patents is that the U.S. Patent and Trademark Office keeps awarding them to things that are both obvious and not new (they’re not quite the same thing). One of the best examples is a recent New York Times story, which told the story of Geoff Goodfellow, who came up with the idea of sending wireless email to a mobile device in the 1980s and started a company to do just that, although the company failed. Later, a company called NTP would file a patent for just that technology and much later would successfully sue RIM for infringing it. TechDirt has an even more recent cautionary tale.

And what does Geoff Goodfellow say about why he didn’t patent his idea?

“You don’t patent the obvious,” he said during a recent interview. “The way you compete is to build something that is faster, better, cheaper. You don’t lock your ideas up in a patent and rest on your laurels.”

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