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Is the Tide Turning On Patents?
Glyn Moody writes "The FSF has funded a new video, 'Patent Absurdity: how software patents broke the system,' freely available (of course) in Ogg Theora format (what else?). It comes at a time when a lot is happening in the world of patents. Recent work from leading academics has called into question their basis: 'The work in this paper, and that of many others, suggests that this traditionally-struck "devil's bargain" may not be beneficial.' We recently discussed how a judge struck down Myriad Genetics's patents on two genes because they involved a law of Nature, and were thus 'improperly granted.' Meanwhile, the imminent Supreme Court ruling In re Bilski is widely expected to have negative knock-on effects for business method and software patents. Is the tide beginning to turn?"
The main difference is that this isn't a constitutional case. The law says that there shouldn't be patents for software or business methods, and the courts have interpreted this in a very strange way. What we are asking the court to do is interpret the law as congress intended it to be interpreted, not over-rule it.
as it has been shown before, when it comes to software it's better to innovate than waste time on patents. Unfortunately a lot of people think it's a great idea to get something patented and don't even consider that hundreds of other people may have done the same thing before.
I work in an industry where I hear the phrase "I'm applying for a patent on my product" all day long. It doesn't mean shit, and you can get sued for claiming a patent on a product that doesn't get approved. You're applying for a patent for x? guess what, so are the other 25 people for doing the same thing. This goes double or triple for anything involving software in any form.
Yeah, tell me that patents don't matter when *you're* being told by potential investors that, gosh, you're a software company with an innovative product but you only have an app out for *one* patent? What are you thinking?
Regardless of that particular lawyer's minority position, potential investors and even state and federal grant boards look strongly to whether you're taking steps to protect your IP. We have product *and* are patent pending. The product was developed privately before the patent was applied for. Most software companies launch on sweat equity. Early on, cash is for hardware, lawyers, travel, things of that nature.
As for this "use the money to innovate instead" argument? Filing for a US patent costs about $10k, including attorney fees. An entry-level programmer costs you perhaps $65k after benefits -- we're talking entry level. So that's two months worth of salary + benefits. How much innovation do you think an entry level programmer is going to do in two months?
Furthermore, all of the costs aren't upfront. You may only spend $6k or so up front, but more when you need to actually defend your patent. So that gets pushed down the road, which in a startup, is a *very good thing*. So off the bat, it's one month of a starting programmer's salary you're talking about.
This is just the way business works. You either play the game or you get out of the pool. Many people here don't like patents because of their stifling effect on free software, and rightly so. But your anger needs to be directed at those who defend or seek to strengthen our current patent system rather than those who want it to be more reasonable but don't have a voice in the matter.
Here's an issue that most people here probably aren't aware of. The patent system is skewed toward helping the Big Boys. Startups aren't your problem. Startups have less money, yet they have to pay more for patents because they don't have a big team of lawyers lying around. Startups often aren't familiar with all of the risks and intricacies of the patent process and may screw themselves over by talking in detail about what they're doing too soon or things like that. Startups *definitely* can't afford to patent troll, to file a bunch of random patents and see what sticks. Startups may not be able to afford to extend their coverage to new markets or cover their tech as well. So the whole system is biased in favor of big companies.
What would I like to see in patent reform?
* Shorter terms for software patents. The term on a patent of a given type should be proportional to the typical length of the product cycle, such that the term is, let's say, however long it generally takes for the third generation of said product to hit the shelves. So if you say the typical software innovation cycle is 2-3 years, then perhaps 5 years. From time of granting, not of filing.
* Greater leniency for filing errors, but stricter standards for what's innovative
* Faster processing times
* A *higher* filing fee. This will make the percentage-difference in cost between patents from the big boys and startups smaller, as well as helping fund more people to review them faster and better.
And you know... a lot of the business world would probably consider me a radical for this, but I'd like to see there be funding -- perhaps from the patent fees themselves -- for a governmental legal defense organization for nonprofits and individuals. That wouldn't mean that nonprofits and individuals would get a "violate patents risk-free" card. But it'd help stop meritless bullying from companies who know that their targets are too weak to fight back.
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