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 7,250,102,766 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!

Reviews and links for February 2010

Programming WPF by Chris Sells

4/5

A highly detailed and well written reference to WPF. Note that this second edition is still based on Visual Studio 2005 / .NET 3.0 so a little out of date now. I still found the book to be very useful and would recommend it both for picking up WPF basics and to refer back to for more advanced topics when needed.2/26/2010 2:00:00 AM

 

Professional C# 2008 by Christian Nagel

4/5

I'm in the process of upgrading to VS2008 and loved the 2005 version of this book so picked up the 2008 update. It's a broad language and framework reference, perfect for understanding what's available in .NET 3.5 and how to get started. My only complaint is that it could have used a "what's new" section or guide to separate out completely new technologies from those familiar from .NET 2.0. Not a big problem though, it's easy to skim through the old stuff and then pay attention when you reach something new. I'll probably pick up the 2010 version in 2015 or so ;)2/15/2010 2:00:00 AM

 

Links

- UK NHS urged to buy Fairtrade tools from BBC News | News Front Page | World Edition (Fair enough, but what about having developing countries pay to train doctors and nurses and then poaching them to work for the NHS?).

- Brown 'upset' by bullying claims from BBC News | News Front Page | World Edition (And when he finds those responsible he's going to turn purple, squint and twat them.).

- CBS runs free ad for "magic" energy box from Boing Boing (A slightly more skeptical take. Magic box plus natural gas...).

- French halal burger sparks appeal from BBC News | News Front Page | World Edition (So eat somewhere else. You're in France and not about to starve.).

- One inch equals $30,000 in online dating world from Boing Boing (I'm worth $2.2 million :)).

- Video: Mantis vs. Cursor from Boing Boing (OK, I need a Preying Mantis to entertain me like this while I work...).

- Toyota recalls 8,000 US vehicles from BBC News | News Front Page | World Edition (And they're not even real propellers. They're just the joke ones you can attach to your tow hitch.).

- Britain reveals how U.S. treated detainee from SFGate: Top News Stories (Miliband against the "principle of their disclosure by an English court against U.S. wishes"!).

- Mariposaaah!!! from Spots Unknown (Feels steeper walking up it.).