The software patent system is broken, long live the software patent system

Tonight I went to a panel discussion, one of my favorite closet nerd things to do on a Thursday night in NYC. It was at Hack Manhattan, aptly titled “Software Patents Debate – FREE alcoholic and non-alcoholic refreshments.” Sold out, obviously. The panel was hosted by America’s Future Foundation and featured Nilay Patel of The Verge, Chris Mims of Quartz, Reihan Salam of National Review, and patent lawyers Christina Mulligan, Alan Tenenbaum, and Greg Maskel, moderated by Chris Gaun of Gartner.

The purpose of the panel was to debate whether or not software should be patentable, if the current system is broken, and if it encourages innovation. All the panelists agreed that it was not optimally functional, mainly because of the legal aspects. The main example they kept coming back to was of a 15 year old kid in Wichita who makes iPhone game apps in between homework assignments. The kid could get sent a letter from a company claiming he’d infringed on their patent. The letter may or may not be valid, but that doesn’t matter—even attempting to defend his app could require up to $30,000 in legal fees and a whole lot of time. And it’s not like he knew about the patent in the first place because there’s no effective way to search the system and see if what you’re working on falls under another patent, he’d just have to build the thing and wait to see if he got a letter. As Christina put it, “when you’re in the position of making a product, it’s mathematically impossible to know what patents you might be infringing.” This is in-part because of the rate of growth of the software industry, in which there are about 700,000 patents currently pending, and millions of others in existence. Understandably, if I had the skills to invent something new, I would feel really discouraged from sharing it with anyone.

Furthermore, it’s difficult to define who the patent trolls are and thus impossible to impose regulations preventing such trolling. They are usually companies who bought up a bunch of patents but aren’t contributing any innovation to the marketplace, and will sometimes send letters in the hundreds or thousands to people who could possibly be infringing seeking royalties, which many inventors are inclined to pay even if they didn’t knowingly infringe on the patent because paying the royalty fees is cheaper than the legal costs. So the trolls can just sit back racking in the dough they’re bullying out of anyone brave enough to attempt to innovate. It’s clear they must be stopped via a reform in the legal system, but the reason they’re able to do that is because the ability to claim royalties exists to protect inventors from getting their ideas ripped off by intentional copycats. SO we need to find a way to differentiate between innovators and leeches. Shouldn’t be hard in theory, but what metrics do you use in practice?

It’s a stifling atmosphere that makes a lot of true innovators throw up their hands and say “to hell with the system, I won’t use it.” This is often the case with proponents of the open source movement, who are clearly the ideological heroes. But in refusing to seek patents on the principle that they won’t engage with a corrupt system, they are choosing to be poor. As Nilay put it, “the people who need [the patent system] the most are the people who don’t believe in it.”

Then there’s the case of companies trying to discourage competition by trying to patent things like rounded corners. Obviously no one company invented rounded corners, and certainly not Apple, but they still won. So the system is clearly still having some problems establishing whether an invention is “new” or if the company is exploiting the shit out of it.

The lawyers were very lawyery. One of my favorite exchanges was when Christina pointed out that the vast majority of patents are never litigated but one could still never know if he was in the wrong. Then Alan chimed in and said it didn’t matter, “go forward with your product and if you become successful then you become a target.” So if you don’t get successful, don’t worry about it. Except… what’s successful? Selling 100,000 apps at a dollar each and having to spend half that on legal fees? A million?

Then someone said maybe software shouldn’t be patentable at all, because it’s this thing that’s way different from a steam engine or light bulb or whatever was being invented when the patent laws were made with a 20 year expiration date that doesn’t really make sense in the context of today’s rapidly changing software landscape.

Ultimately, we want as much innovation as possible in our society. But as usual, the dudes on the golf course smoking cigars are keeping the nerds from saving the world. One thing’s clear about this royal mess though: Something’s gotta give.

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One thought on “The software patent system is broken, long live the software patent system

  1. Pingback: Links 1/21/13 | Mike the Mad Biologist

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