Sep 28 2006

Good Morning Vietnam

I felt like that wonderful Robin Williams character when I fired up FeedDemon this morning and saw the flood of patent posts from Jim Moore and then bounced around Google Groups for the Irregulars list and saw more commentary on the IBM Patent announcement.  Eventually, I noticed that Jim had taken me to task for cheerleading the IBM announcement without providing any critical analysis (I think I got classified by Jim as a “smart liberal” who – when “ultimately IBMs motives and plans will be revealed” – will “look like [a] fool.” Oops – I don’t think my mother will be proud of me when this occurs.)

I like Jim a lot, respect his thinking, and enjoy all of our interactions.  I slowly read through his flurry of posts (keep ‘em coming Jim) starting with his bash on the IBM announcement, his history of software patents in context, his short assertion about property rights, and his assertion that an innovator needs to be protected from having his or her ideas stolen during negotiation.

There’s a ton of stuff here that ironically highlights the point I was trying to make in the first place.  Our software patent system is completely screwed up.  I’m not focused on the first order effect – I’m focused on the second order effect – which is that as a result of the dysfunction, it’s actually a drag on innovation, not a protector of innovation. 

Now – I don’t necessarily believe that IBM’s approach is “the right approach.”  I’m cheering IBM for being public about trying to create change.  I’m not naive about IBM’s motivation for this – they are not altruistic – their goal is improvement in economic value for their shareholders in the long term.  However, I also don’t agree with Jim’s viewpoint that the patent system protects “the little guy” against “the big guy” and the reason folks like IBM want change is to gain an advantage over the little guy. 

Finally – I want to state the core of my problem with patents.  I think the US Patent System is great.  I love the notion of property rights for an inventor.  My problem is with how this gets applied to software (and – more importantly – what gets classified as non-obvious invention in the context of software.)  Unfortunately – in my experience – the vast majority of the software patents I’ve been exposed to simply do not pass the test of “non-obviousness” or are invalidated by prior art (the most annoying and entertaining ones are those that stuff I was involved in creating in my first company in the 1980’s actually invalidate.)  I made this point in my original “Abolish Software Patents” post.

I remember a speech from Ted Leonsis in the mid 1990’s where he said “online is going to be Microsoft’s Vietnam.”  Patents are becoming the software industry’s Vietman and I expect it’s going to get a lot worse before it gets better.