A Patent Lie

Decent NYT piece this morning on the irritating issue of software patents.

But don’t software companies need patent protection? In fact,
companies, especially those that are focused on innovation, don’t:
software is already protected by copyright law, and there’s no reason
any industry needs both types of protection. The rules of copyright are
simpler and protection is available to everyone at very low cost. In
contrast, the patent system is cumbersome and expensive. Applying for
patents and conducting patent searches can cost tens of thousands of
dollars. That is not a huge burden for large companies like Microsoft,
but it can be a serious burden for the small start-up firms that
produce some of the most important software innovations.

Yet, as the Vonage case demonstrates, participating in the patent
system is not optional. Independent invention is not a defense to
patent infringement, and large software companies now hold so many
patents that it is almost impossible to create useful software without
infringing some of them. Therefore, the only means of self-defense is
the one Mr. Gates identified 16 years ago: stockpile patents to use as
bargaining chips in litigation. Vonage didn’t do that, and it’s now
paying a very high price.


  1. Its more complicated than that.
    There is a tendency to lump all of the problems of the Patent system together. This does quite a disservice to the legitimate patent holders out there getting ripped off on a regular basis.
    Separate these issues:
    1) The patent office remains underfunded, undermanned, and overworked. Even after adding 1500 examiners last year (and increasing their rejection rates), they still need more bodies — and more cash.
    2) The cost of protecting patents by entrepreneurs and small companies is terribly expensive. Large deep pocketed firms (like Verizon and Microsoft) can regularly steal allt hey want. Look at the “kindler gentler” Microsoft recent binge of patent litigation setllement over the past 5 or so years: They paid a few billion dollars in settlements for 10s of billions of dollars of intellectual property. (Nice work if you can get it)
    3) Trolls vs. legit entreprenuers: People fail to distinguish between legitimate inventors, creators and innovators, who deserve the full protection of their work — with those business modls that buy up otherwise worthless patents and use them as a bludgeon to blackmail non-infringing companies. (I blame the lazy cowardly firms that settle rather than litigate illegitimate claims).
    Its obviously much more nuanced than can be explained in a few short paragraphs, but suffice it to say that any system that allows the inventor to be ripped off by BigCo is not the solution to the problems. an exception may be the Pharmaceutical industry, who understand that if patent protection gets stripped away, their business model dies.

  2. I’d say “remarkably ignorant” rather than “decent”. Copyright protects the expression, patent protects the idea. They are different and complementary. This article doesn’t even get the basic definition of the two things.