the laughing cloud

Software patents and pony dung…

If I read one more “kill software patents” article, I’m going to puke.

Joel’s is the latest:

Here are his 5 points:

  • Elimination of software patents
  • Legal fees paid by the loser in patent cases; non-practicing entities must post bond before they can file fishing expedition lawsuits
  • Roll back length of copyright protection to the minimum necessary “to promote the useful arts.” Maybe 10 years?
  •  Create a legal doctrine that merely linking is protected free speech
  • And ponies. We want ponies. We don’t have to get all this stuff. We merely have to tie them up fighting it, and re-center the “compromise” position.

Maybe we’ll look at these backwards, because there’s so much crap here there has to be a pony in here somewhere.  (That takes care of #5).

Merely linking is free speech, no.  Free speech is free speech.  Knowingly linking to things that are dangerous, illegal or whatever should be discourgaged.  Child porn and hate speech come immediately to mind, followed by stuff like “how to weaponize the H1N1 virus”.  (That was just to make sure the NSA reads this post).

Copyright protection 10 years?  Why the minimum necessary?  For this, whatever a majority of countries can agree on.

Now it gets interesting… Patents.  I do have an opinion on this.

Elimination of Software Patents…. My great, great grandfather was Thomas E Murray, an inventor with (at least) 462 patents to his name who lived at the time of Edison.  He has patents on everything from the powerplant to the light socket (and piles of other stuff too).  He was inducted into the National Inventors Hall of Fame last year… here’s his site:

One of the things he invented was the little valve below.  And a pile of other things like it; what he really did was to invent a new method of welding that let him stamp 2 molded steel halves and weld them together.  That’s a pretty basic thing.  But new technology allowed it to happen.


Fast forward a hundred years.  Same thing with computers and software; that’s where we’re building things today.  And we’re building massive and valuable things.  The railroads of the past are the networks of today.  No difference.  And inventors are inventors.

I mentioned in an earlier post how tough it is to be an inventor.  I recently did an inventory – of 11 provisional and actual patents filed, I now have 2 granted, and one pending.   The patent system is tough.  Before being critical of it, maybe learn about it and try it sometime.

For a patent to be granted it has to satisfy 3 conditions:

  • Novel (something really new)
  • Useful (no perpetual motion machines)
  • Non-obvious (this is the tricky one)

Assuming you can come up with something novel and useful (search google and the USPTO at, the real challenge is coming up with something non-obvious.  It’s almost guaranteed that when you file a patent, the examiner will shoot back a reply (a couple of years later), saying “go away – obvious” or “anticpated by so-and-so in this patent here”.  So the process of argument starts.  Back and forth, back and forth.  If you can convince the examiner that you’re novel and non-obvious – you get a patent.  Remember they do this all day; they’re really good at saying no.

Now, what appear today to be bad patents may well have been granted, especially a decade or so ago when this was a mystery to the examiners – (see that valve, it’s good to be first).  But good inventions often inspire the reaction “wow – I thought that already existed”, or “I wish I’d thought of that”… that stuff appears obvious when disclosed.  And that only gets worse over time.  Amazon’s one-click *really* looks obvious now, doesn’t it?  Remeber we’re standing on the shoulders of giants.

The problem isn’t software patents, it’s programmers ignorant of software patents.  You think what you’re doing is unique?  Ha.  Prove it.  Go check the patent office.  Do a search.  Search google.  And if it is unique?  You can file a patent.  Or throw it into the public domain to prevent others from patenting your stuff.

Almost all the patents I’ve filed have been defensive – it tells VCs, me, and the world, that I’ve done the homework, that this is new, novel, non-obvious, and reduces the risk of us getting sued down the road.  And a bit of obviousness?  You only get sued if you’re successful.  Congratulations.

I’m best known for a bit of software called Big Brother – the first web-based systems and network monitor – still available at even though I’m no longer associated with the product (thanks Quest).  Lots of new stuff there at the time.  What did I do?  I threw the initial version of the product into the public domain – published in an article for Sys Admin magazine.  I got a call from an examiner at the USPTO – asking about monitoring software – and I referred him to the article.  That’s prior art.  The guy trying to patent my stuff didn’t get his patent…

So finding prior art is pretty well the definitive solution to bad patents.  Article One makes money by crowdsourcing this stuff – – no reason we couldn’t do this in an open-source manner either (and it does look like they’ve found prior art on the Lodsys patents).

The good news is that with all the open-source source code out there (easily searchable by google), this prior art searching is getting much much easier (no more going to paper journals for example)… so expect the quality of patents to improve just because of that.

I also suspect that there’s no reason not to crowdsource a patent-defense system – where each of the Lodsys victims contribute $100 towards a shared defense and the crowdsourcing the prior-art search to invalidate the patent… this would be an effective defense against the next Lodsys.  (Anyone interested in this?  Y-Comb?)

Now, the issue of “Non-practicing entities”, aka Trolls.   Joel says: “Legal fees paid by the loser in patent cases; non-practicing entities must post bond before they can file fishing expedition lawsuits”.

I think the pony lives in there.

I moved from Canada to the US 3 years ago.  The Canadian system, a pretty socialist system, has some interesting points, amongst them:

  • Lawyers aren’t available on contingency
  • Lawyers can’t advertize (but their firms can now)
  • Loser pays

On the plus side – there’s no “After 911 Call 411 – 1-800-411-PAIN” in Canada.

Downside is that the little guy is guaranteed to get fucked by the big Corporation.  Unless you are incredibly wealthy you don’t sue, you just eat it.  (At least with Socialized Medicine you’re not stuck with a million dollars in medical bills).

As I mentioned in my eariler post, there are a couple of salient points:

  • Inventing is a dismal business with a 90%+ loss rate (my guess would be 99%)
  • Even if you get a patent, you have to defend it somehow.
  • Patent infringement suits can cost $5MM
  • Even with lawyers on contingency, you can still spend hundreds of thousands of dollars

Trolls give the little guy a chance.  And they’re not stupid, they’re not going to take on a case that they don’t think they can win, because that would just be stupid, and courts don’t take kindly to people wasting their time.

And they exist because they have to.  The world has changed.  The US is incredibly litigious.  Judy Judy is #1 (and look at what she has to put up with). 

In the old days (I’ve been told), large companies used to send their IP guys out to chat with each other.  After a nice expensive dinner, one would say to the other “I need to bring something back to our CEO”, and they’d do a licensing deal.  Nice and simple.

Those days are over.  We’re in the time of “Go ahead and sue me”.  Or maybe buy insurance against being sued.  Or join a cartel of patent holders where you can play “Patent Cold War”.

Stop whining about Software Patents.  Learn about the system.   Let’s see if we can hack it.








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