Is The Lone Coder Dead?

CyNRG writes "The little guy. The one-person software company. Can it still exist today? That's me. I'm once again, after many years, writing my own commercial software to sell. A few things have changed: the patent feeding frenzy. This is my main concern. My perception is that one must verify that you don't infringe on any patents when developing new cool software, and that the explosion of patents granted by the USPTO has reached epic proportions. If this perception is true, then that makes it almost impossible for the Lone Coder to create something new that doesn't infringe on other patents. The amount of money required to perform the due diligence research seems like it would be greater than the amount of money needed to develop the software, or even the total revenues that the software could ever generate. Please someone tell me I'm wrong!" Is he?

Comments

I am not a lawyer

[Elwood P Dowd]

Due diligence?

Patent enforcement is the job of the patent holder. You do not need to do "due diligence" unless you are basing your design on someone else's patented product. Or you are attempting to publish your own patent.

Re:I am not a lawyer

[Anthracene]

Patent enforcement is the job of the patent holder. You do not need to do "due diligence" unless you are basing your design on someone else's patented product. Or you are attempting to publish your own patent.

That makes sense, doesn't it? Looking up and citing other work in the field is certainly the way that academic publishing works. Unfortunately the unintended consequences of patent law make it such that it doesn't work out that way.

When I was (forced by my boss to be) applying for a software patent, my boss told me to look around for other things that might be similar to what we'd done. And as soon as the patent lawyers heard that he told me that, they went through the roof, and immediately told me to stop. Here's why:

Patent law says that you're legally required to reference any potentially overlapping work that you know about in your application. If someone can show that there was something that you knew about and didn't cite in your application, it's grounds for revoking the patent. It's very hard to write laws that talk about what someone ought to know or be aware of, though, so you only have to include things that you are actually aware of. But the more citations you include in your application, the greater the chance that the examiner will reject the application because of one of those related patents you cited. (You can see where this is going...) So, from a legal standpoint, the best situation is one where you honestly have no knowledge of any other work in the field, so you can submit an application with no citations. So you never do any kind of "due diligence" searching when you submit a patent, because all it can do is decrease the chances that it will get granted.

So you really probably shouldn't ever read patents (see my other post in this article about why it's a bad idea for programmers to look for infringing patents). Which is kind of strange and sad considering that one of the main points of the patent office was supposed to be to provide a legally protected way to publicize information about technology to encourage further growth and development.

IANAL, either. Just a disappointed observer, discouraged at how terribly out of control our patent office and patent law has become.

Re:I am not a lawyer

[jaoswald]

Due diligence is only worthwhile if you want to make a patent of your own. Using it as a guide to "what not to do" is a total waste of time.

Look, all the patent does is allow someone to sue you if they believe they can prove in court your work infringes the patent. This requires several steps to have a real effect on you.

1) They have to notice you
2) They have to care somewhat about what you are doing and analyze it in some detail to determine it is in their patent library
3a) You have to be perceived as a threat to be shut down
3b) alternatively, you could have deep pockets to be emptied.
4) They have to contact you/make the first move
5) They have to decide to sue you
6) They have to be successful enough in court to
7a) bankrupt you
7b) make you empty your deep pockets
7c) make you stop and do something else.

At many points along the way, the process can break down in your favor.

- A lone coder can easily stay under the radar while making a comfortable living for one person.
- Unless they hear about your product, and are able to gather enough information, they won't know it infringes their patents.
- If you are successful enough to have deep enough pockets that a patent-holder notices (and patent holders have to be big enough to spend many thousands of dollars to file a defensible patent, not to mention R&D for real innovation), or to be perceived as a threat, you've made enough money to hire a good lawyer. Or, enough money to give up without a fight and retire on your savings.
- When they contact you, you can counteroffer. Lawsuits are risky. Maybe you can create a win-win situation which they would prefer to a possible lose-win situation favoring you. You probably have some code they would like, or skills they would find useful. Offer to come work for them, or license the code to them, or some other kind of collaboration.
- If they decide to crush you instead of accepting the offer, you can just walk away. Agree to cease & desist, and move on. If you don't have enough money to walk away, they what the hell are they suing you for?

Patent holders are either

1) huge companies that don't care about the little ants scurrying around beneath them unless the ant looks like its going to grow into something big. Then, they would rather buy it than crush it.
Mostly, they get patents to cross-license as protection or to protect their market niche from the other huge companies or *aggressive* startups.

2) small companies looking for a big company to sue for violating a patent. They are an ant themselves, looking to take down one of the elephants. Other ants don't have enough money to make enticing targets.

Neither of these cases really cares about crushing some lone coder just for the savage thrill.

Plus, (IANAL) the damages they can get are related to the profits they would have had but for the infringement. If you are some small potatoes guy, the revenue you suck away would be tiny, unless you are obviously going against some cash cow like Microsoft Office or iTunes Music Store or a commercial data base. Creating a commercial product dedicated directly to putting MS out of business is obviously asking for trouble. But is also beyond the lone coder.

Don't waste psychic energy worrying about the remote risk that a patent lawsuit will crush you. You'll have plenty of other reasons to fail, anyway. Life is too short to worry about this kind of thing before the C&D warning shot comes over the bow.

Re:I am not a lawyer

[dourk]

Unrelated to software, but a similar situation from my industry:

Honda has a patent regarding the routing of the front brake line on their motocross bikes. Yamaha is forced to use an alternate (longer) routing to keep from infringing the patent, which ends up decreasing sensitivity on the front brake.

Suzuki ignores the patent. Honda doesn't care. They aren't nearly as concerned about losing sales to Suz as they are to Yamaha.

And I have a bunch of short brake line kits for those yams, if anyone wants better brake feel.

Bittorrent

[jerometremblay]

Take Bittorrent for example. Does anyone know if he actually lives of it or not?

If that kind of success is not enough, I don't know what is.

Not to worry...

[Dustismo]

As long as your source is 'closed', you shouldn't have much to worry about. Cause how is anybody supposed to know that you used a patented algorithm in your code unless they reverse engineered it--which is illegal according to the DMCA. Go nuts.

Re:Count me as a fellow Lone Coder

[Saeger]

From the perspective of anyone who depends on writing software to make a living, it is an especially obnoxious proprietary license.

Funny - I make my living by writing, integrating and providing valueadd support for BSD & GPL'd solutions (mostly web-based).

Most software is a commodity now so it's just the reality of the situation that providing services around opensource is more efficient than the ol' model of selling a piece of shrinked-wrapped artificial scarcity, or a license for same.

--

Re:Count me as a fellow Lone Coder

[lakeland]

There is some truth in what you're saying, but I think the idea of selling cheap software is going the way of the dodo. Essentially, the free software momement appears to result in a clone of any software that's been around for a long time and has a big userbase. Of course, software got cloned before the free software movement too, but there the clones cost a similar amount to the first product and so didn't slowly suck up the profit margins, essentially they competed fairly.

There are reasons for this, but you could think them up as easily as me. More relevant are the implications. In this case, since the grandparent was able to swap to a GPLed version tells me you've got something close to a commodity. And this means you're going to have to keep innovating, staying ahead of the GPLed version, or else users will gradully shift to the cheaper, more flexible alternative.

If you want to continue selling shrinkwrapped software as a one-man team, then I suggest you look at where the free software movement has traditionally done badly -- areas where the software cannot be totally free (due to integration with non-free data), very expensive products for a small market, etc.

But I think a more viable long-term option is to start adding software modifications/consulting and the like to your portfolio.

Of course, there is no hurry for any of this, I just expect every year will be a little harder than the one before.

Re:ok - you are wrong!

[AvitarX]

He is wrong though.

step one Incorporate.

step two pay yourself a salary

step three you are safe.

Incorporating is to protect you from bullshit, it costs less then 100 dollors.

MS set the president that companies are not guilty for the infringemeant of their users.

There are additional taxes though, the corporations income and your income.

EUROPE!!!

[Fuzzums]

Come to Europe! Things aren't that bad overhere. Yet...

The new IP-laws will lake just a little longer to pass, now that 10 new countries joined the EU. They need to negotiate and vote over it again.

Re:Someone has to do it

[dbIII]

He just moved to another country.

RSA developed overseas mainly due to silly US encryption laws - their customers traded with people overseas so there was no way they could legally give their customers a decent product with a US produced product. Other places may have to do the same due to silly US patents. The lone programmer probably can't keep up with the patent mess.

Lone programmers still exist in specialised areas, the company I work for buys some geophysics software from a one man company.

Re:Cooking Patents

[johnbeat]

It's even worse: recipes cannot be copyrighted! Instructions are not able to copyrighted, and that includes recipes. If there's extra text around it that is not really the recipe, that descriptive text might be able to be copyrighted. But the instructions to make food a specific way? That cannot be copyrighted.

The same is true of games. You can copyright a certain presentation of, say, Monopoly. But you can't copyright the rules that describe how to play the game Monopoly. (Trademark, of course, may forbid you from using the name 'Monopoly' if you choose to sell your version of the rules. But neither trademark nor copyright can stop you from selling your version of the Monopoly rules under a different name.)

You can read this at the copyright office web site.

So, no, I never did understand how computer code could be copyrighted.

In general, things cannot be copyrighted unless copyright-ability has been specifically extended to that kind of thing. The natural state of things is assumed not to be able to be copyrighted. So, you can't copyright a cheesecake, or a chair, or a scarf, unless Congress specifically says that you can.

I rant further about this at http://www.hoboes.com/Mimsy/?ART=9.

Jerry

Lone coder

[jkirby]

If you ar a lone coder and you are not worth at least 100 million dollars, no one will sue you. The legal costs of a patent suit would cost more than they could get from you. I am reminded of the old saying: "You can not get blood from a turnip"

Re:Someone has to do it

[cshark]

Wouldn't you if you could?
American IP laws have been getting gradually worse for the better part of a decade.

But seriously,
With a couple of exceptions I can think of. Namely the e-commerce shopping cart patent, there hasn't been much of a threat to smaller development houses. I'm not saying it's not there, but I don't know if it's as bad as people think it is.

Small software houses pose problems for IP lawyers. First, they don't have any money. They barely make any money. They might make enough for the initial developer to get by, but when you're talking about the kind of money these companies are looking for, that's nothing. They'll spit at it.

Secondly,
Smaller firms are a lot more likely to find pro bono defense. There are a couple of non profit organizations like the EFF that are set up to do just that. Then there's the problem of groups of smaller companies banding together to cover legal costs. Any way you cut it, the smaller the firm you go after, the more likely you are to end up in court. Might sound good if you have genuine innovation at risk. But if you hold several hundred questionable patents on business processes, it's bad news.

If I were a patent hording firm, I would be going after the Sonys and IBMs of the world. That's a sure bet.