I’ve been asserting for at least six years that patent system is completely broken for the software industry. I’ve given numerous examples, dealt with the issue first hand as patent trolls have tried to extort many of the companies I’m an investor in, and I’ve had many public discussions about the topic.
On my run on Sunday, I listed to This American Life – When Patents Attack… Part Two! It is easily the best and most detailed expose I’ve ever heard on this issue. If you care to really understand how patent trolls work, spend an hour of your life and listen to it.
The issue has finally gone mainstream. Here’s a great quote on patent trolls from an article in Time Magazine (how much more mainstream can you get than that.)
“In 2011, Apple and Google spent more money on patent litigation and defensive patent acquisitions than on research and development. That’s not a good sign for the U.S. economy; in fact, it’s a stark indication that our intellectual-property system is broken. Rampant patent litigation is impeding innovation and ultimately increasing the costs of gadgets for consumers, according to legal experts and industry observers. Now President Obama says he wants to reform the system.”
There was an outcry of support last week when President Obama issued a set of executive orders and suggested legislative actions to fix the broken patent system. While the press release from the White House had a bland title, the substance was solid and the articles about it got to the point.
- Obama Plans to Take Action Against Patent-Holding Firms
- 3 Silly Abuses Obama’s Patent Troll Executive Order Could Stop
- Obama Orders Regulators to Root Out ‘Patent Trolls’
- President Obama to take aim at patent trolls with executive actions on Tuesday
As expected, plenty of people suggest all of this is misguided or overblown. I read John Sununu’s (former New Hampshire Senator) Boston Globe OpEd Who is a patent troll? Obama calls nation’s techies to arms, but enemy is difficult to define and grimaced as he mostly missed the point, while at the same time blaming it on the government and lawyers.
All of this is shining a bright light on a deeply rooted problem that has spiraled completely out of control and has become an enormous tax on innovation in the United States. While I don’t believe Obama’s executive orders go nearly far enough, they are a start in something that has been ignored by the White House and our government for far too long.
The phrase “it comes with the territory” is one my dad said to me when I was a kid. I can’t remember the context in which I heard it for the first time, but I internalized it to mean that whenever you are trying to do something interesting or amazing, there will always be people who try to tear you down, lob random insults at you, or just do and say things that make no sense to you. I’ve also observed many times (and experienced) the steep curve from obscurity to hero to goat to re-emergent hero that the media loves to play out over and over again. And my day is filled with random interactions – many of them interesting and stimulating – but plenty of them hostile, negative, and troll-like.
I’ve had a weird surge of being on the receiving end of hostile stuff from random people I don’t know the past few weeks. I pondered this a little bit last night on my drive back from Boulder to Keystone after a long, wonderful conversation with an entrepreneur I haven’t talked to in a while. This morning, after trying to have a rational email conversation (again – who I didn’t know) with someone who was just incredibly hostile to me because I didn’t agree with his perspective on “the value of an idea” Amy asked “Why do you bother?” I responded “It comes with the territory.”
I’m fortunate that I get to choose who I work with and am surrounded by awesome people. I’ve also decided philosophically to try to be responsive to any entrepreneur who is looking for help or feedback. I can’t spend “30 minutes on the phone” or “have coffee” with everyone, but I can respond by email to quick specific questions or requests, and I try to respond to all of them. When things go off the rails, which they do occasionally, I’ve decided the only approach is to completely disengage.
I find the noise, anger, hostility, and misinformation spiking up again. I speculate that is has something to do with the election cycle, the general warmth outside, or some new sunspot thing. Regardless, as my dad said when I was young, “it comes with the territory.”
James Bessen, Jennifer Ford, and Michael Meurer of BU School of Law have written a phenomenal paper titled The Private and Social Costs of Patent Trolls. Rather than be politically correct and refer to NPE’s simply as “non-practicing entities”, they cut through all the noise, define what a patent troll is, and go through a detailed and rigorous analysis of the private and social costs of patent trolls. Some highlights from the paper follow:
- From 1990 – 2010 NPE lawsuits are associated with $500 billion dollars of lost wealth to defendants.
- In the past four years, NPE lawsuits are associated with an average of $80 billion per year of lost wealth to defendants.
- Very little of this loss wealth represents a transfer to inventors.
The litigation has distinctive characteristics:
- It is focused on software and related technologies.
- It targets firms that have already developed technology.
- Most of these lawsuits involve multiple large companies as defendants.
The authors suggest that these lawsuits exploit weaknesses in the patent system. They conclude that the loss of billions of dollars of wealth associated with these lawsuits harm society and state “while the lawsuits increase incentives to acquire vague, over-reaching patents, they decrease incentives for real innovation overall.”
While I’ve just summarized the executive summary, the paper is extremely well written, the topic rigorously researched, and the conclusions follow from the actual data. The footnotes are a joy to read as they tackle a few previous papers that use completely contorted logic to make their points. My favorite is footnote 6:
“In effect, Shrestha is arguing: A) Valuable patents receive higher citations, and, B) NPE litigated patents receive higher citations, therefore, C) NPE litigated patents are valuable patents. This is a classic logical fallacy.”
It’s a special bonus that the header on each page says “page # – Troll – 9/11”.
My partner Jason and I were talking about exactly the problem the other day as we wondered why so many people have trouble with logic and deductive reasoning. Our world of software patents is rife with this category of problem. It’s awesome that serious academics like Bessen and his colleagues are going deep into this issue.