Software Patents: Time for a Change
Software Patents: Time for a Change
It’s obvious to me that the patent office has been overwhelmed by both the volume of applications and the technology for software patents, and as a result they've made a lot of mistakes. First, the process is onerous, expensive, and takes a lifetime in today’s technology (2-5 years). More seriously, it routinely grants patents that shouldn't be granted. To be patentable, an invention has to be more than new. It also has to be “novel” and non-obvious. This, especially, is where the USPTO has been dropping the ball. Consider one of the first software patents, the Amazon one-click patent by Jeff Bezos.
The problem with Amazon's notorious one-click patent, for example, is not that it's a software patent, but that it's obvious. Any online store that kept people's shipping addresses would have implemented this, and has done so in a slightly different form ever since. The reason Amazon did it first was not that they were especially smart, but because they were one of the earliest sites with enough clout to force customers to log in before they could buy something.
Applying for a patent is a negotiation. You generally apply for a broader patent than you think you'll be granted, and the examiners reply by throwing out some of your claims and granting others. So I don't really blame Amazon for applying for the one-click patent. The big mistake was the patent office's, for not insisting on something narrower, with real technical content.
A lot of companies (Microsoft and IBM, for example) have been granted large numbers of over-broad software patents, and they keep them mainly for defensive purposes. Like nuclear weapons, the main role of big companies' patent portfolios is to threaten potential competitors who sue with a counter-suit.
So what’s the answer? I would argue to simply eliminate the software patent – since software is already covered by copyright and trademark law anyway. The argument is that software by itself is information, not physical. This doctrine already holds sway in Europe, where software is--in theory, whatever national patent offices may do—not patentable. It is in the jargon not “technical.” It is like a piece of music that is loaded into an iPod, or a record placed on a record player.
Others argue that we should fix the problem by eliminating the litigation intensive model, by integrating institutional competition, and by reforming the internal Patent Office processes. To me, these all sound like band aids, rather than a real solution to the problem.
I’d like to hear some actual experiences from the real world of startups and software patents, either positive or negative. I’m a big supporter of nurturing your portfolio of intellectual property, and maximizing your startup’s valuation, but it shouldn’t be just a game.
P.S. Some of the specifics here were condensed from a more extended essay on this subject, “Are Software Patents Evil?” by Paul Graham, 2006.
Software Patents Time for a Change - To learn more about this author, visit Martin Zwilling's Website.
Like this article? Share it with your friends
I always advise software startups to file patents to protect their “secret sauce” from competitors, and to increase their valuation. I don’t have much conviction that it really does stop competitors, but I do know the rule of thumb that every patent will add $1M to your startup valuation for investors, or for M&A exits (merger and acquisition). Yet the software patent process is a mess. I say this with conviction even after I survived the process, and have a software patent pending.
It’s obvious to me that the patent office has been overwhelmed by both the volume of applications and the technology for software patents, and as a result they've made a lot of mistakes. First, the process is onerous, expensive, and takes a lifetime in today’s technology (2-5 years). More seriously, it routinely grants patents that shouldn't be granted. To be patentable, an invention has to be more than new. It also has to be “novel” and non-obvious. This, especially, is where the USPTO has been dropping the ball. Consider one of the first software patents, the Amazon one-click patent by Jeff Bezos.
The problem with Amazon's notorious one-click patent, for example, is not that it's a software patent, but that it's obvious. Any online store that kept people's shipping addresses would have implemented this, and has done so in a slightly different form ever since. The reason Amazon did it first was not that they were especially smart, but because they were one of the earliest sites with enough clout to force customers to log in before they could buy something.
Applying for a patent is a negotiation. You generally apply for a broader patent than you think you'll be granted, and the examiners reply by throwing out some of your claims and granting others. So I don't really blame Amazon for applying for the one-click patent. The big mistake was the patent office's, for not insisting on something narrower, with real technical content.
A lot of companies (Microsoft and IBM, for example) have been granted large numbers of over-broad software patents, and they keep them mainly for defensive purposes. Like nuclear weapons, the main role of big companies' patent portfolios is to threaten potential competitors who sue with a counter-suit.
So what’s the answer? I would argue to simply eliminate the software patent – since software is already covered by copyright and trademark law anyway. The argument is that software by itself is information, not physical. This doctrine already holds sway in Europe, where software is--in theory, whatever national patent offices may do—not patentable. It is in the jargon not “technical.” It is like a piece of music that is loaded into an iPod, or a record placed on a record player.
Others argue that we should fix the problem by eliminating the litigation intensive model, by integrating institutional competition, and by reforming the internal Patent Office processes. To me, these all sound like band aids, rather than a real solution to the problem.
I’d like to hear some actual experiences from the real world of startups and software patents, either positive or negative. I’m a big supporter of nurturing your portfolio of intellectual property, and maximizing your startup’s valuation, but it shouldn’t be just a game.
P.S. Some of the specifics here were condensed from a more extended essay on this subject, “Are Software Patents Evil?” by Paul Graham, 2006.
Software Patents Time for a Change - To learn more about this author, visit Martin Zwilling's Website.
Like this article? Share it with your friends
![]() | |
| |
No article feedback found. |
| |
Leave Your Feedback |
|
| |
| |||
John PowerJohn Power, founder of Biltmore Franchise Consulting, has extensive experience developing and marketing franchises and business opportunities. He has been in and around franchising for over twenty years. From 1980 through 1990 he conceptualized, organized, and developed the American Video Association. He grew AVA to 2,000 national members, before selling the company it 1990. It was later merged into another home video marketing company. From 2000 to 2005 he worked as a contract marketing and human resources consultant to several local and national companies. In 2005 Mr. Power began working as a franchise development consultant on a full-time basis. Since that time he has helped more than three dozen companies initiate and develop their franchising program. He notes that there are many companies interested in developing a franchise program, and who need his specialized assistance. Mr. Power is a “hands-on” franchise consultant. He said, “I am the ‘nuts and bolts’ person who tends to the details for my clients.” Mr. Power holds a B.S. degree with a major in Marketing. See: www.biltmorefranchise.com You may contact Mr. Power at: jpower@biltmorefranchise.co - Visit John Power's Website |
|||
Leanne Hoagland-SmithAre your sales where you want them to be? Will you be one of the few who achieves sales or business success or one of the many who have failed to change? Are you tired of being told you are like everyone else? Then you may find my first book on sales of interest. Be the Red Jacket in the Sea of Gray Suits, The Keys to Unlocking Sales available at Amazon or at http://www.processspecialist.com/red-jacket.htm. This book is a reflection of my no-nonsense approach to improving sales to overall business results. If you are truly committed to making sustainable changes, then I can help you secure a positive return on your investment because I focus on executable solutions not telling you the problems you already know you have. From training to corporate (group) coaching to executive one on one coaching, my approach is to assess, create awareness, build a goal driven action plan and then execute. The bottom line question is "Not do you or your employees know it, but do you or they want to do it?" Please call for a free strategy session at 219.759.5601. - Visit Leanne Hoagland-Smith's Website |
|||
Anne BarrAnne Barr has over 26 years experience in sales and marketing, six years as a franchisee. She has assisted over 367 business owners and purchasers to achieve their goals in career change, transition and exit strategy. She holds the designation of Certified Franchise Executive from the International Franchise Association, Certified Business Intermediary from the International Business Brokers Association and Board Certified Broker from the Texas Association of Business Brokers. Anne is active in professional organizations, networking groups and volunteers for non-profit entities. As owner/operator of four successful businesses, Anne has proven people skills and enjoys helping clients find the right "fit" in business ownership. Visit www.FranchiseOpportunitySpecialist.com for more information about me and my company. - Visit Anne Barr's Website |
|||
|
To learn more about the Evan Elite Author Program please contact us. | |||
![]() | |
![]()
| |
![]() | |
|
| |
![]() | |||||||
|
![]() | ||
|
| ||
![]() |
| Have you written articles that would be of value to entrepreneurs? Become an expert on our site by publishing them! Expose yourself to a wide audience, drive more traffic to your website and get more sales! Click Here for details. |
|
|
![]() |
| Modeling the Masters: Learn the true secrets behind Walt Disney's business success factors & grow your company! Video produced by Phanta Media |
|
|
![]() |
"Learn straight from Evan how you can Make a Full Time Income (And More) from a Website"
Click Here To Learn More |
|
|
|
|
Get advice & tips from famous business owners, new articles by entrepreneur experts, my latest website updates, & special sneak peaks at what's to come!
|
![]() |
|
|
![]() | ||
|
Top 50 Blogs For Startups
Top Blogs To Watch In 2008 | ||
|
Choose A PR Topic
Press Release Builder | ||
![]() | ||
![]() | ||||
| ||||
| ||||
| ||||
|
|
|
|
|
||||||||||||
|
|
|
|
|









Subscribe to Martin's articles











