Software patents should be abolished

Lawyers would not be losers if software patents were abolished. I think the boom years proved that the more economic activity, the better it is for lawyers.

Just to be clear: it's not as if software is un-protectable. Good code can be kept a trade secret, is copyright its registrant, and there are trademark rights to consider also. Moreover, there are "soft" (non-IP) protections, like maintaining the software, getting into a space first, and (whoa!) having a product that actually just performs better.

The problem with software patents is that they are like minefields in the software innovation universe. One cannot just freely extend an idea, because it could be patented, and if it is bang-o you violated the patent laws: http://endsoftpatents.org/a-litany-of-lawsuits

Shortening software patent protection and requiring a proven implementation investment by the patent holder would go a long way to greasing the wheels of innovation in the spaces you identified.

Weary from comment reading on the intent generation post, marking this 6th popular post as 7/10.

I feel your frustration and recognize that great value is in implementing ideas, but we should credit the inventor somehow as a society.

If patent laws didn't exist for software, I wouldn't start my current startup. My last startup I was a part of sold for $350 million.

I think your argument about GPS is true, some things are obvious. Some things aren't. I think your argument suggests you have a problem with the threshold, not the existence of patents.

As you stated, patents are the ticket to M&A. It's just the way the system works now. Getting rid of patents will throw out the baby with the bath water. You have to put up with the bath water.

I agree that patent trolls shouldn't be allowed to exist. The owner of a patent should be required to show that it is part of a product. If the product doesn't exist, neither should the patent.

If you are starting a software company and thinking patents are the ticket to M&A, I'd reconsider your strategy.

Steven (Kane)

As a person involved in the industry how do you think Patents should be reformed?

You mention you are in favour of a first to post system like Europe. To me this seems to be worse then the current US system. If I invent a product, produce that product for several years but don't patent my invention then someone could step in and steal all my hard work.

Personally I have yet to think of a software process that should be able to be patented (thats not to say there isn't one). For processes like one-click buying it just seems stupid to be able to patent. But software processes are based around UI flows that are constantly changing and as such are generally increment in change.

I hold judgement on other areas of patents as I don't really have as in depth knowledge as for computer software based patents.

Maybe what we should do is allow patents, but have a big caveat. The patent holds only if the person asking for the patent implements their patent within a specified timeframe.

Obviously this won't solve all issues, and there will still be some serious abuse. However, this is a feasible enhancement to the current patent laws. In other words, it can be implement without drastically changing the patent system. It's actionable!

Not only that, it will in essence shutdown all the patent holding only companies since they never build anything.

Again, I understand there are way better solutions, it's just that this solution at least has a chance of being enacted. And it would have a respectable impact.

That would definitely help. Plus software patents, if they have to exist, should have a much shorter duration.

Absolutely. The duration of a patent is now obsolete. Especially with technology. I do understand that medicine might be different, but the durations of patents for software and technology definitely don't make sense.

Thats definitely right. Similarly, and for small companies/individuals, getting a talk into the proceedings of some (ideally obscure) conference or open meeting, eg publicised on your website perhaps, would probably count as publication too and hence avoid the need for a patent by making it prior art. Ive heard it argued that giving a meeting presentation to some 3rd party *without* an NDA is enough to stop you from patenting something, which suggests that that might be sufficient disclosure too, but I somehow doubt thats public enough. ed: typo

Thats definitely right. Similarly, and for small companies/individuals, getting a talk into the proceedings of some (ideally obscure) conference or open meeting, eg publicised on your website perhaps, would probably count as publication too and hence avoid the need for a patent by making it prior art. Ive heard it argued that giving a meeting presentation to some 3rd party *without* an NDA is enough to stop you from patenting something, which suggests that that might be sufficient disclosure too, but I somehow doubt thats public enough. ed: typo

> 3) occasionally failed startups will get funded by investor

You're right. Startup funding should be abolished. Or wait, startups can still be funded, but the mechanism whereby they might ever be profitable will be abolished.

What should be abolished is stupid, low-class prole monkeys trying to make legislation.

Protocol Patents Are Harmful -- Software Patents Are Harmful:
http://www.freeprotocols.org/

Speaking as a co-inventor of several software patents, I hate the things. I have worked at quite a few startup companies in Silicon Valley and all of them have filed for patents purely as a defensive measure, spending tens of thousands of dollars in the process. That's money that could be spent on R&D but is instead spent on legal paperwork, not to mention the time we, the inventors, spent writing up descriptions of our work and reviewing drafts of the patent application. Then, someone else comes along with a competing software patent and the company spends still more money on lawyers instead of on engineers, negotiating licensing swaps that have absolutely no real-world effect on either player.

How anyone can say that's not a drag on innovation is quite beyond me.

Software patents didn't exist when Microsoft was founded, or, better still, when IBM started making computers. Those two companies seemed to do all right for years.

And finally, it is not true that patents exist to benefit inventors. Read the Constitution; its wording is very clear here, even if the grammar is a little archaic. Patents exist to promote innovation. Providing a monopoly to inventors is the *means* by which innovation is promoted, not the end goal, and it is an optional means which Congress may enact, or not, as the situation warrants. If you don't agree with that, take it up with Thomas Jefferson, but that's the current law of the land.

Well said, and of course I totally agree.

patents suck

"societal" ... what an ugly word. Why not "social", since it means what you appear to intend? Because it sounds too much like "socialism"? Or what?

I agree that software patents should be abolished. Just look at how Myhrvold the SuperTroll does business: http://timothyblee.com/?p=781

yes, he is basically dr. evil.

Naturally, people who don't agree with your positions are "evil". Or "trolls".

They couldn't possibly be smart honest entrepreneurial folks with a different point of view.

Sheesh.

And Kim Jong-Il could be a nice guy. And nukes might be cherry flavored.

You are completely apart from reality.

I certainly wasn't calling you or people who disagree with me trolls. I also of course don't think you are evil. I was using the term "troll" to refer to a wave of new companies that don't try to innovate, patent obvious stuff, and then go around suing people.

Why don't we call a truce and just agree we have different points of view. I do think as a full time entrepreneur and co-author of many patents I am a net beneficiary of patent law, so would like to make it clear that whether you agree with me or not these are my genuine, non self serving views on public policy.

Hey, here's one more "bizarre" comment.

I'll use your own logic (from your post) and simply change the property involved and see if it still makes sense:

Lets say there were two companies. Lets call them RIM and NTP.

NTP owns a small building on a corner in the Bronx.

NTP didn't build the building. Someone else did.

And NTP doesn't even use the building -- its essentially abandoned, in a very poor tough area.

But RIM wants to build a baseball stadium in the that area, and transform the whole area. And a huge huge number of people in the greater NYC area would love to have a new baseball stadium, and urban renewal in that neighborhood.

So RIM raises a ton of investor money and without getting permission simply demolishes NTP's building and builds the baseball stadium. And a huge huge number of people are thrilled, and RIM makes a ton of money and success! And NTP has no recourse -- no legal protection, no recourse through the courts or arbitration, no financial remuneration. No, NTP is simply told to pound sand.

Do we want to live in that world?

Not me.

The radical revolution of intellectual property protection -- again, which has only been in existence for a few hundred years -- is that theoretical inventions are treated as property under law.

I really really like that.

In your actual example, NTP was the lawful owner of a lawfully granted patent. RIM was not. You don't dispute that, do you? NTP pursued its interest under law. And was victorious, despite huge financial pressures against it and was compensated, under law.

And I think that is fantastic.

Under USA law, the fact that RIM made a great product and is wildly successful does not justify the illegal use of someone else's intellectual property.

And for that, I am grateful.

One last "bizarre" note --

Why do the purveyors of the anti-IP argument always resort to name calling?

How about if we banish name calling and see if the arguments still seem as effective?

For example, how about not using the word "troll" and instead using "owner"?

For in what sense is a secondary owner of IP not simply an "owner"?

When a company is acquired by another company, typically, the IP ownership is transferred. Or is the acquiring company a "troll" simply because they aren't the original owner?

Similarly, just because I haven't used IP and sell or license it doesn't invalidate the IP, does it?

Maybe I'm too poor (no venture investors) to bring my product to market. Does that invalidate my IP?

For the sake of non-affluent inventors around the world, I hope not..........

Steven, I hear you but software (and not hardware) is just a different animal. Speaking as both an engineer and an entrepreneur I know that ideas are a dime a dozen. It's the implementation and finally getting it to market that breathes life into it.

Patents may have made sense for mechanical devices that have to operate under the laws of physics. Software is just applied math and has no such limitation. Creating a software patent simply creates an un-deserved monopoly around that idea.

Simply put, software patents are bogus.

The fact that "ideas are a dime a dozen" in your view, does not mean
anything. I disagree. I think great ideas are worth lot. And that inventors
and artists deserve to be able to earn their value ‹ via IP protection

Yes, even software.

Calling patents a "kind of property" is either ignorant or willfully deceptive. "IP" has only existed, such as it does, for a few years, while patents are centuries old and have no relation to that idiotic idea.

But it doesn't exist, "Intellectual Property" is just a fanciful term with no basis in law, it was dreamed up by lawyers to try to make patents, trademarks and copyrights seem the same as real property. The law however treats all three differently and their protection is much weaker than that of property, which is actually protected by the Constitution.

The purpose of patents is as Chris originally stated, and as your own quote from Wikipedia confirms; to provide incentive for innovation.

Gosh, again and again, overheated rhetoric.

The term "intellectual property" has been in documented use since at least
1818. The concept iof providing legal protections for inventions (patents,
copyrights etc) goes back at least to the 16th century, and is also
explicitly called for in the Constitution (a document that was also "dreamed
up by lawyers")

From Wikipedia: http://en.wikipedia.org/wiki/Intellectual_property

But who cares? OK, lets not use the term "intellectual property" for this
discussion...

Again, from Wikipedia (quoting Fagerberg):

An important distinction is normally made between invention and innovation.
Invention is the first occurrence of an idea for a new product or process,
while innovation is the first attempt to carry it out into practice.

Patents and copyrights and the like were and are designed to protect
inventors. Not innovators.

That was not "overheated"; you're overreacting.

"Patents and copyrights and the like were and are designed to protect inventors. Not innovators."

Wrong on both counts. They happen to protect inventors AND innovators (yes, there is a distinction, but both can be patented), but that is simply the means to an end; namely, allowing overall technological progress to be made.

Very importantly, patents do not exist to protect some nonexistent "right to exclude others from using your ideas". They exist only for the practical purpose of allowing invention and innovation to take place so that everyone can benefit from such.

This is also, incidentally why they expire. The inventor chooses to patent something and receives protections, but in return, their ideas become public domain when the patent expires. This is one way in which patents are VERY different from property, which obviously never expires.

Sorry forgot to say, my second quote form Wikipedia is from:

http://en.wikipedia.org/wiki/Innovation

In case of NTP you should substitute 'owning a building' with 'taking a dump'.

Poor NTP didn't get no compensation over their poo they placed there.

It's at best misguided to conflate bulldozing, depriving of, or otherwise modifying
physical property without permission, with acts of allegedly similar intent in the
domain of abstract ideas. The SCOTUS established this distinction in Dowling v. United States.
Infringement and theft are distinct.

The issue of intent is more ambiguous in the case of the former, due to the possibility
of deriving the same exact or substantially similar product without the intent to steal.
Such cannot be said of physical property, where perturbation is necessarily a wilful act
due to its exclusive nature (provable accidents receiving a separate treatment).
Either the property is in my control or it's in control of someone else.

This is of course not the case with "intellectual property". One does not exclude another
by participating in the marketplace of ideas. It is widely recognized that competition
represents good means to achieve even a better end: better products for better value.
Society benefits greatly from competition in a free marketplace.

There is however a perfect instrument designed precisely to facilitate protection of
"intellectual property", much the same as criminal laws protect the physical property.
It's copyright and it protects the creator from unauthorized verbatim reproduction by
others, of specific works. The key difference is that verbatim reproduction is more
likely to disambiguate intent. If someone takes your manuscript and publishes it without
permission, it seems plausible that their effort is to derive value from your works
without permission. It's not so clear if someone simply creates a manuscript that is
substantially similar. Needless to say there is no perfect solution to this, because
although extremely unlikely, it is not inconceivable that two independent creators will
arrive at exactly the same outcome in a given field. At times the solution space may
appear so constrained in view of the present knowledge, that it is the appearance of
distinct outcomes that would be unlikely. The law recognizes this with the merger doctrine.

Needless to say, software patents are grossly abused. Although considered pejorative
by some, the moniker "patent troll" is rather descriptive. It is true that under the
existing system, the action of so called trolls are perfectly reasonable. A change in
the system would invalidate such business model, in my opinion for the better.

Finally, the whole notion of exclusion in the domain of abstract ideas is potentially
absurd. While many have effortlessly constructed arguments which seem to strengthen
the notion of patentability of intangible constructs -- namely algorithms and "business
methods" -- taking said arguments to their logical conclusion would lead to paralysis.
Take for instance the idea of patenting a greeting protocol. Such "system and a method"
would force businesses to greet their customers in the most bizarre ways imaginable due
to the blatant "infrigement" that would otherwise result. You see, saying "Hi, how are you"
would be the exclusive domain of some "first mover". How about the notion of literary
patents? What of the notion of patenting legal arguments? What of the notion of patenting
restaurant seating arrangements? What of surgical procedures?
Shall we promote patenting of movement over terrain?

It is not inconceivable that my method of moving over terrain is superior to yours,
and I may demand exclusion for it. This would of course force others to move in a
highly regimented routine for absolutely no reason other than someone's profit motive.
Sure, by getting to work I profit. Ergo, I must not be allowed to get to work in a way
that another has made exclusive -- absent "well deserved" remuneration.
Who knows, perhaps such enforcement would interfere with movement principles that
would otherwise be derived for their safety?

History shows that such exclusion was once the domain of a few powerful elites...
now anyone can hinder societal progress.

Yes, all of the above examples are silly. So much so, that in a critical light they
reveal the inherent silliness of the existing system.

Nicely written, thank you.

As I said, repeatedly, I am in favor of reforming the system.

But I am opposed to throwing the baby out with the bathwater, and, in a
larger context, to overheated rhetoric substituting for thoughtful
discourse.

As an aside, I am uncomfortable with the idea of "societal progress" and
even more so the notion of trying to stop or encourage its being
"hinder[ed]." such was the primary motivating factor behind the deplorable
"eugenics" movement (promoted by many of the "progressive" leading lights at
the time) and we all know how that ended:
http://en.wikipedia.org/wiki/Eugenics

Presumably your allusion in this excerpt:

"This kind of legal framework is a massive, historic, break with the past history of the world. Previously only nobility, or feudal landed gentry could own property of any kind (eg, "the divine rights of kings.")"

was to a new-found societal progress. I was simply reflecting on that, and also trying to underline the new restraints. Although I would consider myself or my ideals rather removed from what I understand to be those of the so called "progressives", I can't help but notice your use of the word is distinctly pejorative. Or perhaps it's juxtaposition with the word "deplorable" that makes it so.

Nonetheless, societal progress can be attained without subjugating people to doctrines of the select few. Likewise, societal progress is not a phrase that must immediately evoke conflicting ideologies. Evidently, supporters of the patent system see its outcome as leading to societal progress, some unabashedly so.

As for eugenics, I agree, the notion is deplorable.

Actually, i was using the word "progressives" literally ‹ at the time of
eugenics largest popularity, in the early 20th century, the Progressive
movement was in full swing, and there was a popular Progressive Party
(political party) in the USA. Many progressives supported eugenics (the road
being paved, as it is, with good intentions) inclduing

From that wikipedia entry on eugenics that i linked to earlier:

The modern field and term were first formulated by Sir Francis Galton in
1883,[10] drawing on the recent work of his half-cousin Charles Darwin. At
its peak of popularity eugenics was supported by prominent people, including
Margaret Sanger,[11][12] Marie Stopes, H. G. Wells, Woodrow Wilson, Prescott
Bush, Theodore Roosevelt, Emile Zola, George Bernard Shaw, John Maynard
Keynes, John Harvey Kellogg, Winston Churchill, Linus Pauling[13] and Sidney
Webb.[14][15][16] Its most infamous proponent and practitioner was however
Adolf Hitler who praised and incorporated eugenic ideas in Mein Kampf, and
emulated Eugenic legislation for the sterilization of "defectives" that had
been pioneered in the United States.[17]

I call Godwin's law. You can go away now.

:)

Only someone with no real world experience could think software patents benefit the poor lone inventor over the affluent. Just not the real world.

Why do you make personal insults?

(As I asked before, why is name calling so often the refuge of people trying
to make this case?)

If it really matters, I have founded 4 technology companies (3 software
companies). I have been listed as an inventor on more than 50 patents. I
have worked with venture investors, raising many tens of millions of dollars
in equity. I have also negotiated tens of millions of dollars of debt
financing, with banks. I have bootstrapped. I have had big successes, and
miserable failures. I have worked as an errand boy and as an executive in
big corporations. I have been CEO and Chairman. I am an investor in several
venture funds. I am an active angel investor. I have sat on many boards,
both for-profit and non-profit, including being Director of a
nationally-chartered bank, for seven years.

Can I please participate in the debate now?

In any case, even your insult makes no sense.

Do law school professors have "real world experience"? Yet I for one welcome
their participation in the debate over patent law.

And, what "real world experience" did Sir Isaac Newton have?

None. Just an academic.

Guess he doesn't measure up in your estimation?

Steve, look at your original comment. It was one of the nastiest comments I've ever gotten on this blog. You and I are so far apart on the facts and public policy that it's probably pointless to debate it.

Sorry, really never meant to be nasty. Seriously. I was just trying to use
the same kind of heated rhetoric you yourself use in your post (which is
entitled "Software patents should be abolished", not, say, "The system would
benefit from reform and modernization".)

And Chris, you started a debate with your post. It doesn't
seem...sportsmanlike to now squelch it (by saying it is "pointless to
debate") just because someone has risen to the bait and doesn't back down?

In the end, as I said in my original comment, I am in favor of patent
reform, and I even cited an example (which you have never responded to.)

But as for this dialogue here, and so many others like it in the tech
blogosphere, I am really, really troubled to see smart thought leaders
seemingly throwing the baby out with the bathwater, and all under the
Orwellian guise of being in favor of innovation, which seems to be happening
more and more often now. And its always laden with name calling (perfectly
legitimate patent owners are "trolls".) Isn't there a calm middle ground
somewhere? Where nobody is a "troll"? And where dissent isn't simply
dismissed as "bizarre'"?

Any case, if you're ever interested, s is now maybe too apparent, I'm always
happy to be a voice in such a debate, with you or Fred or Brad or any
anti-patent voices.

As I tried to do in an earlier comment: let's start with your NTP/RIM
example................

By gosh, Chris, this post is so wrong -- and twists so many ideas so badly -- it is like a big pile of limp noodles built on a foundation of jellyfish

Lets start with your lead:

"The alleged societal benefit of patent law is that it creates a financial incentive to innovate."

No, the long established, clearly repeatedly stated, proven benefit of patent law is to protect intellectual property.

From Wikipedia:

United States patent law was established "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" as provided in the United States Constitution.

This kind of legal framework is a massive, historic, break with the past history of the world. Previously only nobility, or feudal landed gentry could own property of any kind (eg, "the divine rights of kings.")

But in a world of patents and copyrights, even the lowest member of society could benefit from the fruits of their labors, or protect themselves from powerful interests attempting to manipulate or steal from them.

And by doing that, we create the fundamental idea of liberal capitalist democracy.

After that stunningly myopic unthoughtful opening your post only detriorates, as, without that initial snark, everything else that follows becomes bizarre polemic at best, and at worst, an anti-entrepreneur, anti-inventor, anti-creative-class capital-hates-labor invective

I'm all in favor of reforming the US patent system (say, move to a first to file system, like Europe, versus our current first-to-invent system.)

But hearing venture capital inventors pounding the table insisting that intellectual property protections simply should be hollowed out or stripped away -- and all in the truly Orwellian name of "innovation" -- should make every entrepreneur, inventor and artist under the sun tremble with fear and rage.

bizarre comment. i'm not a vc by the way.

in what sense are you not a venture investor?

i believe you invest in startups... no?

and, bizarre?

you rant against intellectual property protection.

i implore you to reconsider based on the fact and spirit of the law. not based on some orwellian notion that proetcting IP somehow is bad for "innovation"

and somehow the people making this argument are always venture investors, people who gain mightily if inventors rights are disemboweled, as, in a world of limited or little IP protection, whichever entity has the most money will always win in the marketplace

"abolishing" any type of patents is simply over the top rhetoric, that, even if well intentioned, risks trememdnous harm to investor, entrepreneurs and artists

maybe not so bizarre

sorry, a typo -- the second to last paragraph should be

... risks trememdnous harm to inventors, entrepreneurs and artists

Leaning on copyright law is even worse, plus copyrights never seem to expire.

In theory, you could change the licenses involving the copyrights, yet those also would need to be tested in court. That's equally a litigious mess, if not more so. What we really need is to just rethink the whole system of protecting people who create stuff and allowing people to share that stuff so that you can spur growth off that stuff by new people without inhibiting economic growth. That's complicated when capital outlays may be high, or when "obvious" may not be apparent quite immediately because the other supporting technologies haven't even emerged yet. When they do, they might not even be covered by the same laws.

Sucks.

I disagree. Consider some of the paths an inventor can take:
invent >> raise capital >> bring product to market
invent >> bring product to market
invent >> sell invention
invent >> pursue infringement cases
Since bringing a product to market by yourself is challenging at best (and eliminating IP defenses only increases risk) , the only sensible path that would remain for an inventor is the one that includes raising capital; this is great for VCs, but in my humble opinion, chopping out 75% of an inventor's options will reduce incentive and concentrate competition into venture-backed companies. It's easy to see why Fred Wilson (and now you) are calling for an end to software patents.

This is a public policy issue, so in my view should be argued over in terms of what is best for society, not for specific entrepreneurs or VCs.

IMO - Real inventors want to build and bring their product to market, whether with VCs or not.

As to the ad hominem part of your argument, as a full time entrepreneur I'd argue I'm a beneficiary of patent law.

Right, and the best public policy is to generate maximum incentive / maximum innovation. (see my previous comment).

I don't think the problem is software patents. The problems you speak of could be solved by focusing on marketplace inefficiencies. There's a lack of simple exit alternatives for inventors.

P.s: Real inventors are addicted to inventing. Most of the inventors I know would rather go back to inventing far prior to seeing a product / business reach cash flow breakeven. Cheers.

But it doesn't really work like that in software. Since when it goes into the public domain is worthless for the *majority* of software patents. Since the idea is worth shit all, all the work is in the implementation.

The only way you could get tangible benefits going into the public domain is to *require* working source code to be in the patent application, that will go into the public domain.

You are giving people sanctioned monopolies where there is no need for them to exist! Furthermore the public get no benefits at all unlike patents from other fields.

Hear hear. Few things in our business get me madder in our business than software patents. They are *definitely* a scourge on innovation and a huge threat to "the little guy" in our industry. They might make sense in other industries but not in software.

I once had to sit in (as an advisor) on a patent troll pitch to some investors for an idea/process as old as mankind itself. These jokers were going to try to steal money from (as you put it) the real entrepreneurial heroes who busted their asses to build something of true value. They tried to paint some lipstick on the pig by claiming they were giving some of the proceeds (if they got the capital and won the case) to charity. A painful hour.

Totally agree. Have had the same experience.

The interesting question to ask is what separates the software patent discussion from patents in other fields. For ex, biotech patents legitimately protect useful IP and spur investment. The question around software arises because of the inability of patent office to judge quality accurately. More stringent "obviousness" standards can help as you point out. The problem here is that most s/w patents consists of non-original tech around so-called "business process" innovation. Tricky.

I know almost nothing about biotech but here is my guess.

1) software moves much faster. no FDA approval process. companies like YouTube can be winners in 1 year.

2) in software/internet - there are many other barriers to entry such as branding, network effects etc.

3) trade secrets work pretty well in software - it is hard to get real IP knowledge decompiling object code.

I have mixed views in theory--and not because I've been an inventor on a number of software patent. While I don't have your breadth of experience as an entrepreneur, I'm still not as convinced that investors don't find patents as an appealing way to mitigate the risk around doing R&D that a fast follower could replicate at substantially lower cost and risk.

Nonetheless, I absolutely agree in practice. Whatever the benefits of software patents, on the whole they are surely outweighed by the costs.

I've done some investing, but only on the side or as a junior person. I'd be curious what more experienced investors think. I am hoping they'll weigh in. But I strongly expect they agree.

I'm specifically curious if there is a trend for investors to urge software companies not to spend any money on patent applications, i.e., if they've concluded that there is insufficient return on investment. Granted, that's not the same as wanting to abolish software patents for everyone--we may be stuck in a prisoner's dilemma where no individual software company can afford not to file patent applications.

Most investors I know (including myself) encourage companies to file patents. As a citizen I hate them, but in business you probably need them given the current situation -if nothing else it's good defense.

But in my view that is all consistent with wanting to get rid of software patents as a citizen and also as a participant in the startup world.

As a patent holder myself I have mixed views on the subject.

An interesting fact, gleaned from an excellent blog on patents, is that many cases involve situations where patented technology has been developed independently (as, I believe, was the case with RIM).

In such situations, I think the defendant should get a pass, though I appreciate it's pretty hard to prove no prior knowledge of the IP.

A lot of these issues would definitely be reduced if the test for 'obviousness' were more stringent.

If you think the defendant should get a pass for independently coming up with something, what would be the benefits of a patent over existing copyright law?

True, and it would work if people were honest. Honesty is the best policy, until it comes to money. The patent lawyer trolls would probably have a hard time enforcing the idea that Person X copied the idea from person Y.

"A lot of these issues would definitely be reduced if the test for 'obviousness' were more stringent."

But whose going to make that determination? The patent examiners aren't qualified. By the time you get real experts involved you are in court with millions of dollars in legal fees probably.

Something else that would help: 1) require patent holders to make bona fide effort to create and market product, 2) shorten the length of software patents.

On (1) use it or lose it - good in theory, but the trolls would just hoover up a lot of dormant patents for pennies

on (2) shorten the length - can't see what difference this would really make.

I would really focus on the obviousness issue. I still can't believe Amazon was able to patent one-click purchasing.

Perhaps, if (in the presence of experts in court) it was found that the original patent was obvious then the holder would not only lose the case, but also the patent - and pay all costs.

That would certainly make the trolls think twice.

1) The patents are discarded, not put up for auction if not used. Even if basically sold straight away it will still restrict the trolls to use it or lose it (meaning a product/service, not just suing). There are other reasons that this wont work though, people will game any definition of "use".
2) If it won't make a difference then we may as well shorten it.

Yes obviousness is the issue but there is no capability to assess this. There should be but there isn't.

Yes obviousness is the issue but there is no capability to assess this. There should be but there isn't.

I think there is the capability, it's just that USPO is overworked. That is why is believe a 'true' test for obviousness should be deferred to cases of litigation. At that point, there is no doubt that the extra work involved is not being wasted.

In other words, the defendant in an patent case should be able to request a thorough obviousness assessment from the USPO. Should the patent fail the test, then the patent evaporates, as does the case, and the litigant pays all the costs.

Couldn't agree with you more. The claim that ideas have authorship is silly in the first place. I could see people believing that when their was a limited distance of communication, but with how easily information flows now, it rather obvious that "my great idea" is not all that unique and it comes down to actually doing it.

It's strange that the only reason you need a great lawyer is because the other guy has a great lawyer, and that having a patent or infringing on a patent doesn't matter to anyone until someone starts making money.

Well, lawyers write the laws and then create an arms race. Good gig I suppose.