Rethinking Software Patents

When I was at Borland at the beginning of the decade, I was amazed to discover that the company held patents for the "tab" user interface element and even the right mouse click, amongst hundreds of others. Few of these patents ever really helped the company and we had long debates internally about what to do with them, and whether there was really anything that could be done with them. Here we were, a very successful software company, inventing many new technologies, and really getting no credit (and no protection from competitors) from the software patent process. At the time I felt that software patents were probably at best a waste of time.

Well I have just had a very frustrating few months. And my experience is causing me to rethink (or maybe to think through for the first time) my position on the software patent debate.

I am coming to see some value in issuing patents to innovative young companies in order to protect them from the abusive behavior of large companies. An established company, like Borland, was capable of pursuing market opportunity through execution. But small companies are too often frozen out of the market by bigger companies. But they can also be an enormous source of innovation -- if we want to foster this innovation from small companies, shouldn't we find a way to provide them with protection?

One client I am working with right now clearly invented something four years ago that a number of large companies have now studied and learned from. My client applied for patent protection in 2007 and the application is slowly moving through the various government processes and will likely be issued in 2011 or 2012.

But in the technology world 5 years is a lifetime. And in those 5 years a dozen companies have now taken this startup's invention and implemented their own versions.

There is one particularly egregious example of a large tech company that asked the startup for a version of the software for testing back in 2008, spent a good deal of time actually using the product, and now has (a) shipped their own version of the technology and (b) refuses to meet with the company.

So how will my client ever recoup the time and money invested in creating the innovation in the first place? The most likely outcome sadly is to sell the patents to a specialty firm, often derisively called a "patent troll." One might look at such firms as being the worst kind of lawyers - those that create no value and just seek to take value out of other, "legitimate," businesses.

But stop for a moment and think about how the firm that enforces patents is actually doing our system a favor -- they are saying to the big company that abuses its power and steals from small companies that there WILL be a reckoning day and a price to pay for this abuse. While they keep a lot of the money from the patent infringement cases, they are at least one way for a small company to someday make something back for their innovation.

And the patent enforcement practice is byzantine at best, with numerous places for a small company to go wrong and lose their ability to effectively prosecute their case. They need someone who specializes in such knowledge to help them.

I'm afraid our world DOES need patent lawyers -- as long as big companies are willing to treat small ones with such reckless disdain.