Software patents suck

by Michael S. Kaplan, published on 2010/08/15 07:01 -04:00, original URI: http://blogs.msdn.com/b/michkap/archive/2010/08/15/10050209.aspx

Okay, it is a Sunday so I am going to very far afield here, feel free to skip this blog if such jaunts bother you.

I'm going to talk about my opinion on software patents from the point of view of large companies.

Answer slightly longer than that: I never realized that anything could simultaneously suck, bite, and blow. But software patents, ironically enough, have innovated in this area.

The general fear that large companies have is that they can do amazing work that someone else can negate because that someone else turns out to have a patent. Since most employees are generally instructed to not search to see if patents exist (to avoid a tripling of a damage award that knowingly violating a patent can easily lead to), and since a ton of patents represent ideas that have not been realized in available products, the fear of an ocean of existing patents that are more profitable to use as a way to sue a big company rather than produce anything is a very real one.

Now if you are a Microsoft or a Google or an Apple or an Oracle you have three major strategies to choose from for dealing with when some company sues you for patent infringement.

I focus here on patent infringement cases that do not involve actual malicious intent (I have never personally been involved in one that has and have not thought through those issues):

Although this can work, there are some negative aspects to it terms of public relations and of future partnerships. Plus it does not work well for companies that have been looked at in a negative light before so is really only good when a company is a darling (something that even the most darling of companies are losing these days).

A subcategory of this one is where you build up a rock-solid case for this method and then show your hand to the patent holder and once they see how they may lose the patent and be out the cost, they often agree to settle. i have personally been involved in several of these over the last decade, and in each case everybody did 'win" in the end settlements were non-trivial and it avoids the negative PR that a scorched earth "napalm" policy can lead to.

This last category has the mildly dubious distinction of being the least expensive of the three. As a disadvantage, it perpetuates the process of having more software patents out there. And as I mentioned, I think software patents suck.

I myself have gotten several of those cubes that you get at Microsoft when you are one of the people behind a patent application (which may or may not at some later point become a patent). They sit on the same shelf as my Sh*tIt awards and my Unicode Bulldog award and some other random things. In all but one case, I got the full $1500 in my paycheck when I got the cube. In the last one I only got $500 but that was because I was not actively involved with the filing and was only listed as an inventor because it was based on my idea and I helped reduce it to practice. It was pretty much prior art and we concluded that when I did that work, but I bit my lip and said nothing so I wouldn't make the filers lose their $1500 and get mad at me. It is the one cube that I always face backwards on the shelf, and in the end it never got the actual patent awarded, since it really was prior art.

After that last patent, I stopped pursuing patents at Microsoft, I stopped focusing on whether any particular idea was good enough to be patented. And I moved to a job where no matter how good an idea of mine was, it wouldn't be my responsibility to pursue getting a patent for it, so I never even had to answer the question again.

Call me a conscientious objector in this war that uses software patents as weapons.

Which is not to say that I wouldn't still help in that second case, mind you. Any time I am in a position to stop a company from using a patent as a sword rather than a shield I am happy to defuse the situation.

(Igor, your comment seems to have gone away, please feel free to repost!)

I honestly don't see the argument. If they produce something awesome and put it out there first then it becomes prior art if someone else tries to do it. And then no one else can patent it. But if some other company had the idea first then why should the startup be allowed to profit here? Small companies don't deserve to succeed just because they are small. They also have to be good and original, too!

Maybe I am missing something here, but as I pointed out even some big companies do not search all patents to see if what they are doing is already covered, so startups are in the same boat as the big companies, in part to avoid that "triple the damages" thing.

Now I see some issues with patents not being utilized, and that is one area they could reform that would solve both the problems I mention and the ones you are worried about -- if a patent is sitting on the shelf and no work is being done on it, then perhaps the one reducing it to practice and using the idea should triumph. Since sitting on the shelf no one is helped by whatever the cool thing is.

I think that and the things that should not be patented are the two big areas of potential reform....

"if a patent is sitting on the shelf and no work is being done on it, then perhaps the one reducing it to practice and using the idea should triumph"

100% agree.

But in general I agree that there are really very-very few patents that deserve to be patents and protected. The idea is often the easy part, and delivering on it is the hard one. To quote Edison "Genius is one percent inspiration, ninety-nine percent perspiration", and I bet he knew something about innovation :)

Ideas are a dime a dozen, the execution is a deal breaker.

You have a cool idea, keep it secret, execute on it, and take the market. Others will have to play catch-up.

Heck, if it is a really creative idea, you don't even need to keep it secret. You can explain it to people, beat them with it in the head, shove it down their throat, and they will still not see it (Xerox Park anyone? :-)