Decent NYT piece this morning on the irritating issue of software patents.
But donâ€™t software companies need patent protection? In fact,
companies, especially those that are focused on innovation, donâ€™t:
software is already protected by copyright law, and thereâ€™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 didnâ€™t do that, and itâ€™s now
paying a very high price.