I Thought He Came With You is Robert Ellison’s blog about software, marketing, politics, photography, time lapse and the occasional well deserved rant. Follow along with a monthly email, RSS or on Facebook. About 7,250,102,717 people have not visited yet so it might be your first time here. Suggested reading: Got It, or roll the dice.

How to fix software patents

In 1790 Thomas Jefferson became the first patent examiner and issued a grand total of three patents. 220 years later the US Patent Office has a backlog of over 1.2 million applications. Internet and software industries are created and destroyed in the time it takes the average patent to issue.

Here's how a startup can easily turn to the dark side:

  1. Investors pressure a startup to file patents in an attempt to make the business defensible.
  2. Tens of thousands of dollars of billable hours result in ‘System and method for displaying a text based colloquial greeting to the populace of a planetary body’.
  3. Startup fails but notices that other companies have implemented their ‘Hello, World’ IP and a patent troll is born.

Software patents are especially frustrating as it's the idea — usually the easiest part of the business — that gets patented. Because patent law doesn't require actual implementation, let alone success, it's as if you could patent “cancer drug” and then sue pharmaceutical companies each time a new treatment rolled out.

It's tempting to call for an outright ban on software patents, as Vivek Wadhwa did recently. This doesn't work because so much technology is software based and because somewhere in that 1.2 million backlog there probably are a few genuinely novel ideas. 

The first part of the fix is to stop examining the patents at all.

This may sound crazy, but think about copyright. You don't need to pay a bunch of lawyers to represent you before the copyright office and prove that this really is the first time a particular novel has been written, or that you were in fact holding the camera when you snapped that photo. Copyright is automatic.

A patentable invention isn't a specific work of art and so some registration system is required. My suggestion is that you upload a PDF and pay a registration fee of around $1,000. It's small enough not to discourage startups and large enough to prevent abuse. USPTO would timestamp the PDF, store it for eighteen months and then publish it.

The obvious flaw would seem to be opening the floodgates to even more patent trolls. That's where the second part of the fix comes in — shift the burden of proof of validity to the company that owns the patent. You can still sue, but the first step is a rigorous and expensive exam process. 

This system makes it easy to obtain a patent but changes the nature of the patent to an insurance policy in case your idea really is as clever as you think it is. It also makes it much harder to use a patent offensively. Resources are more efficiently used to evaluate the novelty of a patent when it is enforced, rather than to do the impossible task of evaluating millions of ideas that never will be.

Full disclosure: I'm co-inventor of several software patents that I hope will never be used against you. I also recently lost a product (Cucku Backup) as a result of settling a patent infringement lawsuit and I hope that never happens to you either!

Comments

Raj

Hi Rob,

Does this mean now no one can implement a social backup concept ?

Raj

Rob Ellison

You'd have to take a look at the patents and get your own legal advice.

Even if you think you're clear remember that you don't have to actually infringe in order to be sued for infringement. You just need deep pockets to defend yourself.

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