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If you own a software patent, you should feel bad. Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this

by grellas 14y ago

If you own a software patent, you should feel bad. Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this statement. I can believe, philosophically, that relatively high tax rates will benefit a society. That doesn't mean that, even in so believing, I wouldn't do my utmost to minimize the tax that I pay within the rules provided by the law. The question before me when I make such decisions is what makes sense for me as an economic actor, not what the broader policy for society should be. And there is no reason I should "feel bad" for acting in my own self-interest in that case even if I believe the rules should be otherwise. So too, if I am a founder, I can abhor the idea of software patents while still using the full range of IP protections afforded by the law to enhance the value of my startup. If getting a software patent for my company's early-stage innovations enhances funding valuation, acquisition pricing, and competitive edge in the marketplace - and if the law says this is a perfectly legal way not only to protect but also to gain monopoly protection over intangible assets that my company has and others don't - my decision here will turn on weighing the costs of getting such protection (money costs, disclosure risks, etc.) versus the benefits, the likelihood of qualifying for it, and similar considerations having nothing whatever to do with the abstract policy debate concerning whether the law should afford such protection in the first place. What is more, if I don't avail myself of such protections and if a competitor later does so in a way that hurts my venture's prospects because I now have to surmount legal barriers that wouldn't even have been there had I acted to protect my company's legal interests in the first place, then I have done affirmative harm to the people who trusted me to run my company to its best advantage - whether they be my investors, my co-founders, my employees, or just my own family members who might suffer if that venture should fail. This does not mean I need to blindly pursue some form of artificial legal protections for my company's innovations. It means that I need to make intelligent judgments about availing myself of such protections as opposed simply to categorically rejecting the idea of using them. In short, I need to be smart about protecting my venture using the tools afforded by the law and not forego those tools out of some philosophical preconceptions I have about what the law should be. The "should-be" part of the law is basically irrelevant in this context for most entrepreneurial decisions of this type. And there is certainly no reason to "feel bad" owning software patents if they turn out to be helpful for one's venture in this context. Maybe this will be seen as narrow, unenlightened, lawyer-driven thinking. It is, however, my universal experience in having dealt with countless founders over many years. Without exception, they have all acted consistently with the pattern I describe and there is no reason they shouldn't have. It makes perfect sense for a rational economic actor. Startups have enough risks as they are. There is no reason to add to them artificially owing to social pressures telling you to "feel bad" for doing what is right for your company. I know the sentiments against software patents are strong here on HN but there is a big difference between a policy debate seeking to influence Congress and actions that make sense for individual actors having to deal with the realities of the law as it exists today. One can condemn the idea of software patents generally without necessarily passing censorious judgments about the actors who need to deal with the law as they find it.

tieno 14y ago
I cannot understand why you cannot understand that. It’s relatively simple: Many people believe that it’s important to make moral choices even if the law doesn’t force you to. That’s a pretty widely spread view. Not everyone has it (you don’t seem to), but you should be perfectly able to understand it. It’s not like that’s something new.
btilly 14y ago
As a software developer who has had 3 patents taken out in my name based on my work, I completely understand this statement. For me the "oh shit" moment was when I was informed that 2 separate sets of patent trolls had looked at the patents and had valued them at easily over $100 million if used to sue a number of major companies, including Facebook. I'd like to believe that I've created a lot of economic good in my life, but not that much. And that my work could be used do that much damage to other people who have done nothing wrong but happened to independently come up with the same ideas later - that makes me sick. Luckily by an odd coincidence, the patents taken out in my name have wound up in a place where they are unlikely to be used to cause this harm. But I have no control over them. The same is true for a startup founder whose startup takes out patents. There is no question that - for the reasons you give - they would be foolish not to pursue patents. However if you pursue patents then your startup fails, your patents can be acquired by a troll for a song. Or if you succeed in being bought out, they will pass out of your power, from which point it is someone else's decision what happens with them. Should they, down the road, be used to damage someone else for more than your startup ever managed to make, how will you feel? My attitude is that patents are becoming weapons of mass economic destruction, and a serious tax on innovation. Before taking a patent out, I would recommend that you think hard about that fact. Because if you don't think about it now, you will have ample time to reflect and have regret if the worst happens. Edit: In case anyone is wondering which patents, US7743404, US7774612 and US8209541. The second and third came as surprises to me, but these things happen once the patent office examines the patent. Part of what makes them valuable is that a good literature review was done at the tim. A number of major companies had tried to solve the same problem, but had come up with worse approaches. Then OpenID came along, solved it in the same way that I did, and everyone who uses that is potentially liable.

by grellas 14y ago

tieno 14y ago

I cannot understand why you cannot understand that. It’s relatively simple: Many people believe that it’s important to make moral choices even if the law doesn’t force you to. That’s a pretty widely spread view. Not everyone has it (you don’t seem to), but you should be perfectly able to understand it. It’s not like that’s something new.

btilly 14y ago

As a software developer who has had 3 patents taken out in my name based on my work, I completely understand this statement. For me the "oh shit" moment was when I was informed that 2 separate sets of patent trolls had looked at the patents and had valued them at easily over $100 million if used to sue a number of major companies, including Facebook. I'd like to believe that I've created a lot of economic good in my life, but not that much. And that my work could be used do that much damage to other people who have done nothing wrong but happened to independently come up with the same ideas later - that makes me sick. Luckily by an odd coincidence, the patents taken out in my name have wound up in a place where they are unlikely to be used to cause this harm. But I have no control over them. The same is true for a startup founder whose startup takes out patents. There is no question that - for the reasons you give - they would be foolish not to pursue patents. However if you pursue patents then your startup fails, your patents can be acquired by a troll for a song. Or if you succeed in being bought out, they will pass out of your power, from which point it is someone else's decision what happens with them. Should they, down the road, be used to damage someone else for more than your startup ever managed to make, how will you feel? My attitude is that patents are becoming weapons of mass economic destruction, and a serious tax on innovation. Before taking a patent out, I would recommend that you think hard about that fact. Because if you don't think about it now, you will have ample time to reflect and have regret if the worst happens. Edit: In case anyone is wondering which patents, US7743404, US7774612 and US8209541. The second and third came as surprises to me, but these things happen once the patent office examines the patent. Part of what makes them valuable is that a good literature review was done at the tim. A number of major companies had tried to solve the same problem, but had come up with worse approaches. Then OpenID came along, solved it in the same way that I did, and everyone who uses that is potentially liable.