As a programmer, an inventor and an author, I have used and benefited from intellectual property protection all of my professional life. That is, I have used patents, copyrights, and trade secrets in my work. 1
Interestingly, up until the early 1990s, software was not patentable in the USA. As a software inventor, this bothered me. It seemed clear that there were some things in software that should be protectable. 2
I didn’t think algorithms as a class should be patentable, but specific applications of algorithms that accomplished a focused goal, very much like the existing standard for mechanical patents, should be. 3
One of the obstacles to patenting software was the then-required need for the inventor to provide a physical, mechanical model for the invention. This of course was an impossibility for software. 4
Incidentally, several years ago I visited a VC’s office in Menlo Park. In his lobby was housed his collection of patent models: beautiful miniature mechanical objects depicting steam engines and such. All behind glass, all extremely costly. 5
I was buoyed by hearing that, in the early 1990s, the PTO (The Patent and Trademark Office) had loosened their rules and allowed certain chunks of software to be patented. I thought this would be a boon to software inventors like me. 6
By that point in my career, I was designing and creating new user interaction idioms by the dozen. It occurred to me that there might be a good business model in that effort. 7
In the early 90s I circulated a business plan to several Menlo Park VCs about a startup that would create a patent library of user interface idioms. We would charge companies royalties when they used them. As per usual, none of the VCs I spoke to grasped the idea or its value. 8
Frankly, I shudder when I think back on that plan. OMG! What was I even thinking? 9
Interestingly, at the time, I had several legal firms as clients. The digital revolution was overtaking the practice of law, and I was witness, if not midwife, to the birth of digital litigation and the software IP revolution. 10
The main barrier to the creation of my own, private library of software patents was the cost of patenting. It took three main things: Money, Time, and Knowledge. 11
Knowledge: A patent has to be written in an extremely specialized legal jargon that allows it to be recognized by the PTO as coming from an attorney. The writing has little to do with the invention and a lot to do with demonstrating that it came from inside the tribe. 12
Employees of the PTO will demand that you scour prior art to defend your application against the claims of others. Remember, your patent application is judged by people who know NOTHING about software. 13
Time: Each patent application can take as long as a year and requires lots of back and forth with the PTO, including revisions, and prior art searches, before it can be awarded a patent. 14
Money: A patent application, at the time, cost about $30,000. That’s not a lot of money if you have just invented cold fusion and you have proof that it will make billions. It’s way too much if you are just speculating on an idea. 15
Yes, there are individual inventors who overcome all three barriers and get their ideas patented. They figure out how to spend less, do the research themselves, and they are patient. THEY ARE ALMOST ALL PATENTING NON-SOFTWARE IDEAS. I honor these men and women. 16
In the world of software, patents turned out not to be very useful for thinkers, innovators, and inventors. One needed too many of them, they were too costly, and they were too difficult to get. 17
That is, of course, unless you were a big company. Coincidentally, just around the time that software patents became legal, the software industry began to morph from a movement of inventors to a movement of financiers. 18
Big companies had the Money, the Time, and the Knowledge to amass libraries of speculative patents. What was extremely difficult for a lone inventor was easy for a billion-dollar company. Easy. 19
The primary way that big companies use their libraries of patents (and all of the big companies have huge libraries of patents), is for cross-licensing. 20
For example, say that Facebook inadvertently infringes on an Apple patent. Apple IP lawyers send FB a cease-and-desist letter. FB answers by negotiating a deal with Apple. Apple gives FB rights to the stepped-on patent, and in return, FB gives Apple rights to a few of theirs. 21
This is business-as-usual, but if you step back a few paces, it can also be considered collusion, no different than price-fixing, red-lining, or any other smoky back room deal making for the benefit of the deal makers at the expense of everyone else. 22
One side effect of patents being written in a special jargon by lawyers is that they are vague as hell. In fact, vagueness is a highly-prized virtue in patents. It allows the patent-owner to claim infringement where there actually is none. 23
So, when a couple of young inventors create something new and remarkable, crafty IP lawyers can find ways to show (to patent attorneys, not to software inventors) how they have been infringed. How convenient. For the big-company owners of large libraries of patents. 24
The big companies then play a little game called Plato o plomo. This game derives from the criminal drug trade in Columbia where one can make money by joining the criminals or be killed by not joining. Literally, it means silver or lead. Money or a bullet. 25
The big company says to the little innovator company: We will exercise our rights under patent law and crush you, or you can accept our generous stock offer and become part of BigCo. 26
The other big development of the loosening of patent laws is the birth of patent trolls. Their business model is remarkably like the idea I had in 1990: amass a library of patents, wait for someone to infringe, then hold them up for ransom. 27
Such patent trolls do not make any products, have no intention to make products, and know nothing about making products. They are simply trying to use the patent laws as weapons to collect tolls from inventors. They tend to target small businesses. 28
Do a little research on patent trolls and it will make you seethe with anger. Paying them costs a lot. Fighting them costs a lot more. Most of them are bogus, fly-by-night outfits operating out of unused storefronts in one county in Texas where a local judge gets a kickback. 29
A couple of the biggest and nastiest of the patent trolls are “respectable” businessmen with names you would recognize. They all made billions in the software industry then realized that government-backed IP extortion was the ultimate business model. 30
They endow universities with buildings costing millions of dollars to give themselves public credibility, while they take billions of dollars out of the economy. 31
The bottom line is that, today, in order to innovate or invent, one must also be an “entrepreneur.” The current meaning of that word is not the part about innovation, but it is the part about being funded by a VC. 32
Remember that VCs’ office with the patent models? The VCs act as IP middlemen between the big companies and the starry-eyed inventors. They put up the money for the inventors to patent their work, then they work out the deals to sell to the big guys. 33
The bottom, bottom line (what we used to call “The BFL”) is that today, IP is more harmful to inventors than it is helpful to them. IP law forces smart, energetic young people to sell their ideas to rich old white men. So, no, I am not fan of IP laws. Plato o plomo. 34
Essentially, although copyrights and copyright law is completely different from patents and patent law, they’ve landed at the same end. 35
Remember, the IP lawyers who graduate from the top law schools at the top of their class go to work at Google and Apple. Those at the bottom of the class of their lesser schools go to work for the government. 36
The end result of a cadre of very competent, highly paid corporate lawyers spending years chipping away at a cadre of less-competent, underpaid lawyers has created a world where copyrights are essentially the same mechanism as patents: tools for looting creative youngsters. 37
If you write songs, greeting cards, books, copyrights aren’t much help unless you can afford to “defend” your work. So, your work gets ripped off unless you submit to the indignities of having a money partner. 38
Needless to say, the modern IP landscape is antithetical to the notion of free enterprise, the free market, and economic mobility and self-determination. That is, it is unAmerican. 39
One more point about patents: They were not created to “protect” inventors. They were created to accelerate the industrial revolution. Inventors were given 17-year exclusive right in exchange for publishing the details of their invention. TPTB wanted others to copy inventions. 40
In the digital world of today, there is really no need for the government to assist in the propagation of inventions. That is one reason why patents have gone adrift. 41
So, do we need intellectual property protection? Yes, of course we do. Are patents and trademarks those tools? No. No, they are not. Have I thrown up my hands? You make the call. 42
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