Software Patents – Policy vs Strategy
The very first expense we incurred as a business was a legal expense associated with filing a patent on our invention in the area of GPU and accelerator software. Filed in 2007, the patent finally issued on Christmas Day last year. We now enjoy a time-limited monopoly.
Strategy
Applying for that early patent and our defense of its protections over time is a wise business strategy given current patent policy in the United States. As a business with duties to our customers, employees, and shareholders, it is our responsibility to optimize our legal strategy to make AccelerEyes as successful as possible. Software innovation and associated patents are part of that strategy.
Policy
While pursuing an optimal strategy that fits the current patent policy environment in the United States, at the same time I think it important to support efforts to improve patent policy. I believe the right policy change for the United States is to abolish all software patents.
Key fact: To be represented by a top tier law firm as a plaintiff or a defendant in a patent case costs $4-5 million through district court. This does not include the costs of appeal.
My policy position is due to the unfortunate and increasingly widespread flaws and abuse of the current software patent system. Abuse stems from several critical problems:
- Some patents are granted by the USPTO that never should have been granted because they violate one of the requirements of patentability
- Trolls can use patents, no matter how bad they are per #1 above, to force large companies to pay a ransom to settle expensive litigation (i.e. Key fact above)
- BigCos can use patents, no matter how bad they are per #1 above, to inflict a cash crunch (i.e. Key fact above) on small companies who will be forced to defend themselves. The recent move from a first-to-invent to a first-to-file system in the US further skews the balance of power from small innovative companies that do not have cash to file a patent for every idea relative to BigCos.
Here are some articles that articulate the case to abolish software patents:
- My Suggestion on Patent Law by Mark Cuban
- Here’s why economists hate software patents
- ‘Patent trolls’ put brakes on S.F. transit app
- New Zealand just abolished software patents. Here’s why we should, too.
- The Patent Pledge by Paul Graham (an interim step)
Overhauling the software patent system is a tough thing to imagine happening. Those in power have too much of a vested interest in the status quo. Software patent litigation is a big business.
What thoughts do you have on the patent policy and strategy?