If You Have A Half Hour Today, Watch This

Video: Patent Absurdity – Dokumentarfilm (28:54)

I found this on Brad Feld's blog this morning. It shows why software patents and business method patents are a problem for the innovation economy.

#Politics#VC & Technology

Comments (Archived):

  1. Aviah Laor

    The pro software-patents guys have wonderful suits.

    1. kidmercury

      lol yeah they def got some nice threads

  2. Mark Essel

    Staking a pole in the ground of an idea is easy. Doing something with that raw idea is hard, especially in software/web services

    1. fredwilson

      exactlysoftware is like art where the best artists take ideas from each other butalso take them in new directions

        1. Mark Essel

          From the post he mentions software. I took it that way

        2. fredwilson

          i am not pro-patents but i can accept them in industries where the protection is needed due to the time frames required to commercialize technology, like biotech and energy tech.but in software, i see them as crippling innovation, not empowering it.all that said, i would like to see an independent inventions defense for all patents in all sectors

      1. Mark Essel

        My one gripe with software and design remixing/hacking is that the field is closed to sharp and creative field experts who can design but not code.There’s a barrier that locks out anyone who doesn’t want to think like a machine (that’s my poor man’s way of describing coding)looking forward to more available tools. If you can imagine an interface Fred, the computer and software should be able to render it without innate hacking ability, or a degree in comp Sci. Even though most software stuff is reasonably easy for me to understand it doesn’t mean the same is true for everyone.The paint brush is too complicated for software as art. I agree with your analogy though.

  3. kidmercury

    thanks for the bad news boss. i def agree, software patents are stupid. only thing worse is business method patents, lol, that’s so ridiculous.but ultimately, the story continues to remain the same: whether it is the stock market, monetary policy, war, patents, or whatever, the US government is profoundly broken, more than it has been in a long, long time (probably since the colonies were under king george). most people aren’t even trying to fix it, but even if they were, the system is so corrupt and broken that it basically cannot be fixed IMHO. in fact that’s probably one of the biggest reasons why no one makes an effort at meaningful political change — because they know such efforts are futile.the real solution IMHO is for folks to think about building a new government. this one is going to self-destruct anyway, as empires always do. the changing economics of geography (hubs instead of nations) points to what the new world order should look like IMHO.anyway, as i enjoy saying, until the governance problem is fixed, doom and gloom will prevail. ignore the problem at your own risk.

    1. Mark Essel

      +1 for doom and gloom.Ok Kid it’s incumbent on you to come up with the modern day empire doomsday clock. Or a color alert system

      1. kidmercury

        the ancient mayans, hindus, hopi, and probably others beat me to it…..2012! for a more scientific and personalized clock, i recommend gregg braden’s time code calculator. part of me thinks braden may resonate with parts of the fredland community. he def operates at the intersection of science and spirit.

        1. raycote

          Do you mention gregg braden’s as parody or are you serious?

          1. kidmercury


    2. raycote

      “the system is so corrupt and broken that it basically cannot be fixed”followed by”the real solution IMHO is for folks to think about building a new government”so you are secretly an optimist?what form should “building a new government” take?

      1. kidmercury

        Indeed I am an optimist. 911 truthers almost always are.Forming a new government begins with monetary policy and virtual currencies. Kooks often enjoy citing a quote from mayer amschel rothschild of the rothschild dynasty (folks at the top of banking cartel): “give me control of a nation’s money supply and I care not who makes its laws.” Once the people regain control of money, almost everything else falls into place.

        1. raycote

          Yes… Yes… Yes… that is a very practical place to start.It is going to be a very tough nut to crack!

  4. jaretmanuel

    This is a crime against innovation, and sadly enough greed is winning out. Wouldn’t it been great if they believed that guy in the early 1900’s who said there is no need for a patent office because all ideas have been thought of. For such an intelligent bunch, we humans are truly the dumbest collective species on this planet. Soon our thoughts will be patented, where simple math will be forbidden, and we will in legal battle over merely voicing an opinion. To the fighters wanting to end Software Patents, great on you. Fred thanking you for sharing Brad’s find, and the producers did an awesome job. The ending sums it up very nicely.

  5. Jayant Kulkarni

    I cannot see the difference between software patents, process patents, or patents on pharmaceutical drugs etc. If one is against software patents then one is against patents in general. I think that the key differentiating factor for software patents is the rapid time-scale of innovation in the technological sector. Patents are awarded for long durations (20 years or more) because that is the time it used to take to extract value from them to justify the risk that the early stage innovators took and to reward them for their creativity. But with the rapid speed of development in the technological sector such long durations of protection benefit the innovator disproportionately, to the detriment of society which would benefit once the patent was in the public domain. I think that instead of arguing about whether software patents are valid or not, patent durations should be self-calibrating and should be tied to the time-scale of innovation in that sector. So a software patents should for example be awarded for a duration of 2-3 years. This will still reward creative innovators, allow them to extract value from their work, without hampering further growth and innovation in the sector.

    1. MJL

      Jayant – nice point for somebody unfamiliar with the quirks in this argument.Instinctively this seems like the right approach.The E-harmony patent described in the vid seems like a weak example. Applying named variables to components of a mathematical formula that has existed for many years is clearly nonsense.

    2. fredwilson

      software is largely math as the video points out. pharma patents are not math.

      1. Jayant Kulkarni

        Yes, software patents are largely math, but why should a creative person doing clever biochemistry in a lab benefit from their innovation any more than a mathematician who finds a way to quickly solve NP problems (!), or develop an incredibly efficient sorting algorithm? A mathematician has a family to feed too. (Not asking this question from a “what does the law say?” point-of-view but from a fundamental “what good are patents for?” point-of-view. Patents encourage innovators to try something new and for taking this risk society awards them exclusivity for a limited time. I am suggesting that in fast moving fields like software this time period be shortened and in slow moving fields like pharma they can be longer.)

        1. Fernando Gutierrez

          Another approach could be to consider the investment done. Instead of saying x years in pharma and z years in software it could depend on how costly was to get to that invention. It would be difficult to measure, but it could make some stupid patents not worth the paper in which they are granted (simple algorithm… five days patent).

          1. Jayant Kulkarni

            Yes, investments made, returns expected, patent duration are all parameters that could be tweaked for maximum societal benefit. The system is broken but being against all software patents is I feel like throwing the baby out with the bathwater.

      2. J. Andrew Rogers

        Computer algorithm patents are math in exactly the same way that chemical process patents are math. There are literally theorems to that effect, and the real complication is that *practical* distinctions between “types” of patents have all but been erased with the progression of technology — the theoretical equivalence is becoming a practical equivalence. Chemical process patents are pure, abstract symbolic manipulation, they don’t describe implementation detail (they would be useless as patents if they had to); I’ve worked with both industrial chemical process and computer algorithm patents, and they are remarkably indistinguishable.In short, the theoretical reasoning that would classify computer algorithms as math for the purposes of patents would classify *all* patents as math necessarily. This basic fact is the reason no consistent and defensible “algorithms are math” exclusion has really emerged. In Europe, for example, algorithm patents are allowed because they are directly equivalent to electronic circuit patents (which business method patents are not) which makes it impossible to meaningfully separate them as a statutory class.This is not a defense of computer algorithm patents per se (and I agree that business method patents are defective even in concept), but opponents of computer algorithm patents are making an argument that is neither usable nor credible when they mention “algorithms are math”. If that is an argument, it is an argument against patents generally.

        1. ShanaC

          That’s an excellent point about how pharma works. and it’s only likely to grow more in that direction in the future with genomic research (as things get more tailored)

      3. sachmo

        I have to agree with J. Andrew Rogers. Most chemical engineering plants have heavily engineered processes regarding flow rates, and rates of reaction and such. The patent protecting these sorts of things involve a lot of math.

    3. raycote

      Short duration patents would provide a good workable compromise solution but that too would meet heavy resistance.

  6. Fernando Gutierrez

    This is a really complex issue. We can all agree in the extremes but probably not in the boundaries. It’s easy to be with the guys against patents when you see the end of the video and how they destroy music. But I also find it very difficult to tell someone who has been working on some complex program that he can’t have any protection. I’m confused…By the way, the part of the video in which the big powers destroy each other with patent litigation is amazing!

    1. Leland

      If it is a complex program and the source code is protected, a patent will not impede competitors to any great extent. The value of being the first to write that complex code is having the first mover advantage.

  7. Morgan Warstler

    It’s just another bad effect from an over-willingness to rely on government to solve problems (rent seeking).It tells the story we see repeated elsewhere, the appeals court is set up out of air to deal with patents, and low and behold it fills up with lawyers who love patents.We’re building ever increasing systems of complexity being mediated by lesser people who couldn’t possibly understand the exponentially increasing permutations…. all the while, their power, their own well being, the size of their own house, grows only if they add more complexity.The entire success of Web2.0 has been brutal KISS. The applications, the interfaces, the attitude has been keep it cheap, keep it simple, let everyone else use it, get out of the way. We should be attacking government with the same thinking. If we’re not, I think we’re losing the right instinct.This is the true meaning of the “let he without sin” thing, where sin is running to government. The only true way solve the problem, is look at the other areas of your life where you might run to government, and stop. Really let go.Then and only then, can the strongest growing sector of the economy actually grasp the reins of power, by simply presenting a truly united front – “sorry government, you just don’t understand, so none of us recognize your natural place at this table.”We still have it. The die has not been cast. For 15 they have been terrified of “taxing” the Internet, they felt insecure about themselves around web guys, and they still are. It shape shifts so often, by the time they got done chasing MSFT, GOOG was the new action. But back then, when Netscape was crying because they couldn’t sell their browser anymore – most guys were far too suspicious of letting DC anywhere near the baby.I myself am convinced we’ll never repeat the last 15 years, if we don’t maintain the same suspicions.If technology gets co-opted by government and its proponents like minerals, agriculture, finance, and manufacturing… we’ve gone far too silently into the good night.

    1. raycote

      I largely agree but remember mega corps. can be just as problematic on the flip side.We all get to play the monkey in the middle role and must try to keep both big government and corporate monopolies from hogging the power ball.

      1. Morgan Warstler

        I’m not afraid of corporations unless they are sucking on the government tit. And my method of limiting them is removing them from said nourishment.

        1. Roger Toennis

          Thats a pretty big “unless”. Name a Big Corp that isn’t both sucking the Government “tit” and pumping that “tit” up with hormones(lobbying) for its own benefit?Big corporations ALWAYS get corrupt in proportion to how big they are. In democracies, Big Corp is always way more dangerous than big government because with government we can directly “throw the bums out”. Not possible in such direct manner with corporations. Big corporations are mini-monarchies where the public has much less direct control over curbing the corporations influence.With government it can get bloated and overdone, certainly. But usually it just gets ineffective and bureaucratic and slow and pondering and expensive (Re: incompetent). Corporations get big, powerful AND can more easily remain competent in ‘sucking the wealth out of an economy for it’s sole benefit’.The “robber barons” in every free market economy return in force about every 80 years.2010 – 1930 = 80 years1930 – 1850 = 80 years Read this http://en.wikipedia.org/wik… and compare to runup to 30s Depression and to the runup to 2009″ Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.” – George Santayana (http://en.wikiquote.org/wik

          1. Morgan Warstler

            Again, it is government which ensconces these guys into protected rackets. It doesn’t mean we can’t have “regulation,” it means that the government MO needs to be on KISS. Always side with less complexity.So end AG subsidies. And kill off half the USDA. Overnight.Put rules down on FDIC (which is a subsidy) which chases Wall Street out of conventional banking, so that those that get the advantage of FDIC, aren’t able to leverage that (our deposits) into CDO loans, etc.Essentially, if you make a rule, make it one is easy to enforce – even if that means a limitation on the industry. But once you make it, LEAVE it alone. Again, if we show a willingness to keep twisting buttons and turning knobs, it creates a line of rent seekers out the door.There’s no mistake that Texas survives quite nicely on a legislature that hardly ever meets.

          2. ShanaC

            Texas has terrible schools from what I hear….and the USDA is crippled from inspecting food plants…which is how we get ammonia in our food…

          3. Morgan Warstler

            ShanaC, we left CA for TX because we were having kids.Here’s your data point: http://bit.ly/5nWJAhIf you want USDA inspecting meat, fine. I’m concerned with RUS and all the other giant stuff from the Rural Electrification Act on 1936. There’s a way of doing one and not the other. Paying wealthy family farmers off is out of bounds as well.Seek simplicity, seek a productive government and it will all work out fine.

          4. Roger Toennis

            One mans simplicity will always be another man’s “overregulation”.When you have 150 million adults all with a different opinion as to the right set point for “the right amount of rules” you’ll always have someone squealing about being over-regulated.The irony of simplicity, though the right goal, is it’s complex to find it.If you have too many “less than deeply thoughtful” people in your population they get in the way of actually finding the useful simplicities.

          5. Morgan Warstler

            Not really. Ending AG subsidies is simple. Keeping FDIC banks from say selling off their loans is simple. A tax code with no breaks is simple.If it isn’t simple it is either wrong to do, or being done wrong.

          6. Roger Toennis

            Wow. You really believe that the wall street bankers were forced against their will by the US government to a lie to their “customers”? The old “The government made me do it!” excuse for bad behavior, eh? What’s next? When the IRS comes calling will they say “The dog at my receipts for the “charitable donations” I’m claiming and its the ALL THE GOVERNMENTS fault because the MADE ME own a dog!!”My heart bleeds for those poor blighters as the ride in their limos to from their posh offices on Wall St to their $5M mansions. Sure they live a life full of $1M+ bonuses but just think of the horror they live in being forced by the government to live this luxurious life of criminal deception.OH THE HUMANITY!!! Weep for the wall street exec my friends, you know not the “suffering” they endure at the cruel hands of this representational democracy.If only we would return to the golden days of monarchistic rule and let these wise powerful men dictate to us how the money should flow in our economy we would be SO much better off!!<pause> <wait for=”” it=””>NOT!

          7. Morgan Warstler

            Roger you appear to miss my point completely. I don’t know how you’d read what I wrote and think it is arguing, “The government made me do it!” excuse for bad behavior, eh?FDIC regs. Simple ones. Like if a bank gets FDIC insurance, they can’t get into trading.No bailouts. None. What are you not getting?

        2. raycote

          Morgan you are a very smart guy, I realy like your KISS theme and most of your example hold water but still I thing you are over simplify the complexity that can arise out of corporate concentration of money power. As Einstein says “keep it as simple as possible but no simpler”. Oligarchic networks of corporate wealth control are both real and complex. Thus they necessitate some level of countervailing complexity to represent the public interest. It is a necessary evil.I agree, we need a vast rearrangement and simplification of social governance. Given the intwined corruption of both corporate and government structures, it seems like an impossible task but that is the reality we are face with. Lets not throw out the baby with the bath water.I vote to start framing the debate about social dynamics around a lexicon of organic-process-literacy, the recurring dynamics of complex, adaptive, interdependent community subsystems with the emphasis on an organic network of distributed local checks and balances. A market place approach to social control structures. A much simplified central governmental structure would still be required to mandate and enforce those distributed local networks of checks and balances.The lexicon ofrepresentative governanceis to the lexicon oforganic-process-literacyWHATThe lexicon ofalchemywas to the lexicon ofchemistry and it’s atomic tableYou could not get on with meaningful assemblage of useful molecular structures until your shared language set exhibited some significantly effective isomorphic mapping onto the underlying reality of substrate components(atoms) and the recurring process rules(valance) by which they can be recombined.Similarity it will be very difficult to make much collective progress in the debate over effective social governance with out a shared lexicon exhibiting some significantly effective isomorphic mapping onto the recurring underlying themes of organic networking dynamics that constitute our present network base economic and social realities.Government is not the enemy it is just severely broken, similarly our competitive corporate market place is severely broken especially the banking and financial industryYes I know you know this, my soapboxing is almost done here!Like McLuhan says, if you push a process to far beyond the environmental conditions for which it was designed it flips into it’s opposite, from being a tool into being an impediment. Our simple, linear, top down, representative democratic mechanisms have been pushed to far into an organically complex political economy for which they were never designed.Our contemporary organic network of social and economic stakeholders require a much more direct form of governance, a direct, distributed, organic participation in the daily policing of our social and economic homeostasis.Long live organic-process-literacy!The simplest form of complexity that will support the job at hand

          1. Morgan Warstler

            Ray, this kind of stuff shoots way past me. Shared language (whether in information theory, or communication) is to me important though.It’s why I think we should be instinctively distrustful of those who use specialized vernacular to niche themselves apart, and where we can we should aggressively push towards the use of common language, in medicine, law, finance… demeaning those who hide behind the idea that some things are not easily explained.We just saw a positive version of this played out with Fred and other VC… a determined effort to try and get term sheets standardized. Even though they ended up punting, they tried.Perhaps it would have been better to collect lots of terms sheets, and group the different terms / rights (each described in different ways currently, but always in my experience in single paragraph terms, meaning you don’t see two different preferred rights explained in the same paragraph) – each into their own wiki, with it’s own comments – describing exactly what it meant, and what it’s function was and wasn’t. And then attempt to find agreement, not on what should be in all term sheets, but instead an agreement that no matter what terms are in a term sheet – there is a standard paragraph for each one.There aren’t that many unique concepts in terms sheets, so we’d achieve virtually the same benefit…. paying lawyers less money over time.

          2. raycote

            Yes, shared language can be effectively reused crossed multiple instances of the same process to enhance comprehension and accelerate execution.But even more importantly, shared language that can be effectively reused crossed multiple disciplines will accelerate the synthesis/collaboration around new process solutions, EVEN PROCESS SOLUTIONS THAT LEVEL-MIX ACROSS INDUSTRIES AND SOCIAL STRUCTURES.organic-process-literacyspeaks to what is core across all disciplinesEVERYTHING IS A PROCESSwe need to infect everyday language and culture with a PROCESS BASED LEXICONeven the nouns are processes in disguisethere are no nouns just verbszoom in on any noun and it is just a group of smaller noun in a conjugating processkeep zooming – some old some old——————-AS FOR GOING OVER YOUR HEADI have noticed you are pretty good at reducing processes to there core components so I don’t believe that is true!More like, this stuff is to pedantic and impractical to be of interest.TAHT IS FAIR ENOUGH – I’m OK WITH THAT – I’M USED TO ITafter all I have friend I’ve tested this stuff onI JUST CAN’T HELP MYSELFI’m IN LOVE WITH THIS STUFFAnyway, much of my chatter could be classified as noise in the context of this blog’s focus. I see abstract overlap but overlap is in the eye of the beholder.

          3. Leland

            Raycote, I am sure you have some great ideas here, but I can’t penetrate the maze of vernacular you have constructed around your points. If you could be a bit more simple and explain your ideas more plainly, more of us could understand you and subscribe to your ideas. Please imagine you are trying to write a best selling book that will be read by the general public. 🙂

          4. raycote

            something when wrong?

          5. raycote

            again a bad posting process?

          6. raycote

            Leland – POINT TAKEN!But, I mistakenly thought I was simplifying.Some of my posts here are just my attempt at spinning out an interwoven cross disciplinary stream of concept summary in hopes of firing other peoples conceptual hot buttons in ways that cross pollenate with their particular conceptual landscapes. Concepts passing in the night, while hoping for collisions.Your are right though, my ramblings are probably meaningless to anyone who has no previous interest or exposure to the overlap between:living system theory (universally recurring organic process dynamics as applied to all levels of social community)andan emergent, culturally dominant, lexicon required to make these concepts socially actionable.IMHO the emergence of a culturally dominant organic-process-based lexicon, mind set, will inevitable be dictated to us by the underlying reality, the very fabric, the inherent dynamics of a networked society. Network based community structures are by definition an instance of the larger super-class, namely, living systems. Dealing effectively with this reality require a shared social language, empowering us to stand on the shoulders of all the previously known, predictable, recurring attributes of such organic living systems. This saves us from reinvention the wheel at every level of social organization and debate.The language of chemistry empowers where the language of alchemy fails. For this same reason we cannot succeed at social collaboration with a shared language that does not effectively describes, or does not effectivelymaps onto, the underlying realities with which we are faced. We are moving from a linear paradigm to an organically networked paradigm. We need to focus on distilling the simplest possible language compatible with our new organic social reality.It is not just important that we all attempt to become good communicators by develop effective language skills. It is equally important that we continue to perfect and improve the mechanics of language itself, making it simpler, more effective and more accessible to more people.A lexicon that supports organic-process-literacy(visualization) is more than just a traditional linguistic word set. More importantly it is an intuitive repertoire of animated user experiences that viscerally convey the reality of living our lives embedded within an organically networked social fabrics. A perceptually ergonomic interface powerful enough to give us simple, elegant, effective visualization&control over the recurring dynamic attributes of organic living systems as they apply to all levels of our social interplay, self, families, groups, organizations, nations and supra-national, all are instances of the same organic dynamic interplay. At every level of social organization we are participants in some incarnation of a complex living adaptive system. It is all about conceptual and organizational reuse.My off the wall posts are sort of an experiment. I original thought these ideas would have more resonance with people working on social graph software structures. But as you and Morgan points out, this stuff is just perceived as noise in this channel. It is too far off topic. I should probably cease and desist with this type of posts on this blog!In my defense, I must protest that my vernacular is not really all that deep here. These are not my points and the books have been written.Marshall McLuhanDouglas HofstadterNoam Chomskyand most importantlyJames Grier Miller – living systems theoryout of print – Amazon second hand about $200.00

      2. raycote

        sorry psted in the wrong place

    2. josex

      If governments like the idea that monopolies can make some jobs higher paying, they should keep in mind the overall costs to society from monopolies and that more people will be out of job or forced into one they don’t like. Further, software is accessible to everyone; hence, it falls under the domain of hobby and freedom of expression. Making open source software artificially scarce is robbing from constituents.If governments want a high tax revenue, they will have one if they free software. The increased social wealth and productivity from open source software will lead to happier constituents, a more resilient economy, and they will still have a large tax base to target (after software has been utilized, not before).Citizens need to remember that patents increase the cost of software, stifle innovation (not to mention lead to lazy monopolists), and will lead to much less of the $0 growing body of quality open source software available today.And we all need to remember that patents allow those that did not do the hard work to get all credit and rights over the hard work and investments of others.For a list of some of the problems with software patents, see the comment http://opensource.com/law/1… “Unconstitutional, illogical, damaging, hand-cuffing, insulting..”For a way to actually promote innovation (or at least do much less damage than with monopolies, especially very long, very broad ones) and not abridge the rights of citizens, see http://markproffitt.com/201

      1. Leland

        Josex thanks for the helpful links. Excellent comment.

  8. vinnie mirchandani

    Fred, not just software, pharma, telecom, plenty of affected industries – see excerpts from my upcoming book The New Polymath http://bit.ly/8Zod9qThe problem is big companies blame trolls but in some ways they are worse in gaming the system to extend their patent duration or reach.

  9. Avi Deitcher

    I would find it interesting to see how many companies – software/Internet/IT firms – are against business method patents in their early stages, and are now highly in favour of it. I suppose it is unsurprising: when you are innovating, you hate patent protection that big companies, the ones you are trying to disrupt, buy. Once you get big, you leverage it to prevent disruption.Simple (and non-representative) example: I searched USPTO for how many patents are assigned to Google; it was 367… to a company that didn’t exist a decade ago.To your credit, Fred & USV, I searched several of your portfolio companies – Twitter, Zynga, Foursquare, Boxee – and not a patent assigned to one of them. You guys do put your money where your mouth is. Kudos.

    1. sachmo

      Patents take years to issue. Some of the companies may be in the process of prosecuting patents.

      1. Avi Deitcher

        True, though you should be able to search on pending and provisional, no? Or are you saying not to be too quick to give credit to USV, they might have stuff in the works?

        1. sachmo

          They may have stuff in the words, I would too if I thought that I might get sued. I don’t think its a bad thing to file a patent though.

    2. fredwilson

      and a third of our companies are under attack right now by patent trollsone of them may go out of business as a resultit’s a crying shame

      1. Avi Deitcher

        It is clearly your hope that the Court will finally kill software/business method patents; do you have a reasonable expectation that they will? I know, neither of us is a Constitutional law lawyer…Of course, waiting for Congress to address it, what was that old Supertramp song? “Dreamer, silly little dreamer…”On a more serious note, given the current situation, do you advise your portfolio companies to acquire patents defensively?Also, how do you view other VCs on this front? I cannot tell you the number of times I have heard (either myself or with colleagues firms), “so, what is your IP? Without some real patentable IP, we are not interested.”

      2. Joe Siewert

        I imagine they don’t have the resources to fight these cases and even settling must be a huge blow to an already cash-strapped start-up. Is there anything a start-up can do from the beginning to protect themselves from infringement risks? As the video mentioned, many times a company doesn’t even know it’s infringing on something.

        1. Leland

          As far as I know, there is nothing they can do Joe. Patent law is not fair, it usually results in the party with the most money for lawyers and legal costs winning.This is where the American legal system is today. The best way to fight it is to contact your local representatives and tell them about how pressing of a problem it is.

  10. Brian Wang

    This reminds me of an intense discussion amongst my fellow Cato Institute interns awhile back in the intern War Room, several of us came to different conclusions and then someone drummed up the work of Cato scholar, Tom G. Palmer, who wrote about whether patents and copyrights were morally justified, that seemed to change a lot of people’s mind: http://bit.ly/9Fi8Bm (PDF)

  11. sachmo

    I think a huge part of the problem is that the PTO is not rejecting enough software patents for being ‘obvious.’ In other rapidly evolving fields they do a much better job of rejecting obvious improvements to existing inventions. The PTO needs to do a serious review of the way it handles the prosecution of software patents and business methods, and they need to very strongly tighten the standards by which they give out these patents. I’d have to disagree on taking a stand against all software patents though. Today, the line between hardware and software is becoming less and less clear.In my back yard for example, I have a timer set up that automatically turns on the lights outside of my house every night, and then turns them off in the morning. The timer is pretty old. It uses a gear as the mechanism to turn on and off the lights. Basically the gear spins very slowly, and at a certain time each night a metallic tab attached to the gear depresses a push button that turns on the lights. The push button remains depressed for most of the night, and by morning time, the gear has revolved some more, and the tab releases the push button, which turns off the lights. To change the particular time that the lights turns on and off, you have to unscrew the covers over the gear, and manually change the position of the metallic tab. Whenever the original gear-based timer for lights was first designed, it may have been a patentable.If the timer had been designed in the 90s it is likely that a microcontroller would be used to turn on and off the switch that controls the lights. There would probably be a set of crude looking 7segment displays where a user might press a couple buttons to change the time of day that the lights turn on and off. I’m not a patent lawyer, but I think don’t that this kind of microcontroller based timer would be patentable because of obviousness.Today, it seems as if we’re headed towards a touch-screen computer that would control the turning on and off of the house lights. And along with that, it might control a host of other appliances and power usage throughout the house. Now if all computer did was turn on and off lights, the patent would also probably be rejected. But if the software did genuinely new things involving the management of other appliances and mechanical features around the house, it might be patentable. And why shouldn’t it be patentable?Conceivably a system could be made from gears, or fluids that might accomplish the same thing as a computer system that runs software.I have to say also, that I was personally put off by the arguments in the video about how math itself was slowly being sold to companies. If you actually look at the eharmony patent that he talked about – 6,735,568 – you’d find that NONE of the claims even mention matrices or anything like that. Even if they had mentioned using a certain type of matrix, it would be a simple matter to design around them by using a different type of mathematical function to match people.What the eharmony patent does mention is getting people to fill out compatibility forms, compare them via a computer system, and match the people with close compatibility. If it is the case that this was done before by someone else, then it would be a simple manner of getting the PTO to re-examine the patent with evidence that this has in fact been done before. If the eharmony technique was not done, then why shouldn’t they get a patent on their idea? None of the other dating sites were doing it, as intuitive as it may seem…The other reason that I found the whole math argument put forth in the video disingenuous is because most mechanical systems rely upon mathematics in their design, in precisely the same manner as a computer system does. The physical gear system that turns on and off my lights, uses some mathematical principles in its design much like any software.More generally, its a bad idea to specifically claim a particular equation or mathematical function in a patent even if you do use it, because someone could easily replicate your design using a slightly different equation or mathematical function. In my own patent that I have filed, a situation like this came up I can assure you that it is no serious impediment to me.I remember, Fred, that you posted a patent that Facebook had acquired regarding newsfeeds. If you can find evidence that the concept existed before the issue date, you can challenge the legality of the patent and ask the PTO to re-examine it in light of the new evidence. You can do this for all of the software patents that should not have been granted because of existing prior art.I don’t know why the PTO is dropping the ball so badly on software patents. I don’t think its a good thing that they are, but I also think that patents serve a broader purpose. I wouldn’t have a shot at my particular business idea if I couldn’t patent my invention.

    1. fredwilson

      it is true that you can challenge patents on the basis of prior art and ourcompanies do that regularly when they are suedbut it is time consuming, expensive, and not at all productive work

      1. Roger Toennis

        True, the current brain damage with patent trolls and the award of ridiculous patents with obviously blocking prior art is expensive and time consuming.But I agree with sachmo.Just because the a lot of current workings of the patent system are broken doesn’t mean we have to completely throw out the concept of having patents. Originally, most patents were about a new and inventive ways to apply the single concept of “physical leverage” in the solution of a commonly faced human problems.That evolved over time into other types of “leverage” patents; “chemical leverage patents”, “electric leverage patents”, “electromechanical leverage patents”, “magnetic leverage patents, “electromagnetic leverage patents”, etc.Software just happens to be the modern day version of “physical leverage”. The reason this is true is obvious. It’s because a LOT of the problems we as humans need solved now exist in the realm of the “network” where software is the defacto implement of leverage.So why should a novel inventive way to implement “software leverage”, that solves a very important problem facing humans in this internetworked world, NOT be patentable???The entire point of having a patent system is to ensure that the “little guy”, who has an idea and invents something that solves a problem people need solved, can have enough breathing room to commercialize it and get REWARDED for his idea and work. He needs this time and breathing room so he can get it going before the “idea stealers” can use money, influence or some other entrenched power base to screw him over by stealing his idea before he can get it to sustainable traction.Whenever you see ANYONE who can be viewed as being one of these “powers that be” advocate the removal of patent protection in an area in which the wield power…. remember the old saying…”Power corrupts and absolute power corrupts absolutely.”RT

        1. ShanaC

          I agree with sachmo too, and you are right about the network implications of leverage. it seems that we’re having a very hard time separating method and leverage for unique ideas because ideas disseminate so widely and quickly now. Still, some of these ideas are unique. If e-harmony was a physical machine made with gears that did the exact same thing- it would be patentable…and there in lies the problem….it’s very hard to find out what the machine is. Software isn’t about the machine- we’ve abstracted that idea away. What is it then???

          1. Roger Toennis

            Shana, good comments. I really like your point about a physical version of E-Harmony built with levers and pulleys. This begs the questions “Is Software Physical?”The reality is that each Software program is in fact a specification for a physical machine that in most all ways is really no different than a visible system of levers and pulleys. It’s just that software when running is a very, very physically small system of physical levers and pulleys. But make no mistake. When software is running it is absolutely “physical” in what it is doing. Software is ALL about the application of “physics” on a very small scale.It just so happens that the way you construct a software machine is you type mainly text information into a keyboard. That information is “Code”. But that code is not the software machine. This is where the average non-technical person gets confused. Code is NOT the Software. Code is merely the instructions for a code “compiler” on how to build a software machine for a particular physical computing processor.That code that is written is translated by the compiler into the actual SW machine you have envisioned. When translated and created and loaded into a computer processing complex, the SW machine takes the form of a unique and novel set of low level computer instructions encoded physically as “Ones and Zeros” in computer memory devices. These ones and zeros then specify how the computer is to then physically/electrically turn on and off microscopic switches laid out on the computer’s integrated circuits. This process is 100% tangible and 100% physical. Software programs are a class of machines that are all about electrons moving in predefined/controlled ways to solve a real problem the programmer wants solved.So software at the point of it’s operation and application to solve a problem is 100% a physical thing. It’s just a very small physical thing that can be modified and morphed rapidly by changing the instructions for the code translator and retranslating the code into a modified physical machine. Those skilled in understanding both software and computing hardware know exactly where that machine is and exactly how it physically works.So this belief that software, as it exists when it is running on a physical compter processor, is not itself physical, is a common misconception. That is why the proposals to prevent anyone from patenting software are misguided. The problem is not that SW should not be patentable. The problem is that too many people don’t really understand the technology of software so they can’t make a good judgement on which software machines are novel and should be patentable and which software machines been invented before and therefore cannot be patented again.Thanks,Roger

  12. Venturatis

    Patents makes nosense when referred to new consumer habits. Should be restricted on how to technically solve those problems.More on (Spanish) blog http://wp.me/pNhN0-5u

  13. Brady Sadler

    Thanks for sharing this Fred. I like the creative way the film mixed the evolution of the law with interviews to tell the story. After some research I found that Luca Lucarini, the director of Patent Absurdity, has been involved with a few other interesting tech related documentaries including Steal This Film about file sharing and Pirate Bay – http://video.google.com/vid

  14. pruett

    this is a terrific eye-opening video. who really benefits from this current patent system? does this system stifle creativity and innovation? i would like to hear pro-patenters defend these questions with regards to software.i think the biggest disappointment is how the current patent process turns companies into defense-obsessed monsters of industries…in most cases, by no fault of their own. it’s the inevitable byproduct of a war where companies are forced to acquire more weapons and ammo in order to survive. in this case, the weapons are the defense attorneys and the ammunition are the patents.what a pointless war!

  15. Tereza

    This issue is so frustrating.I totally appreciate the high-level argument. Bad, software patents, bad. I buy it, I support it.Meanwhile, back at the startup ranch, every nickel is so precious. I want every nickel to go into the product. Whether or not to spend some on patent attorneys is a painful decision. I hear really divergent opinions on this from equally intelligent and experienced people.So on a very practical level I’d like to know, what’s the absolute minimum you should do and spend to remain an attractive investment to Angels and VCs.Is a provisional patent app with a cut-rate “Patents-R-Us” attorney at all useful? Need to go higher quality? Find an attorney who’ll take equity or defer fees?Aren’t there investors who’ll disqualify you if you’ve blown off the provisional patent process?Would love some clever, actionable suggestions….

    1. fredwilson

      don’t spend a dime on patents or patent lawyers right nowwhat matters is the product, then the product, and finally the productspend every dime on that

      1. Tereza

        Thank you, Yoda.

      2. Leland

        Unless your startup is based on patent trolling…:)

  16. George A.

    This video is fantastic. Very well done. Reading through some of the posts, it would appear that the regulars here are pretty anti-big company. however, if you watch the video, several of the interviewees point out that the patent system benefits no one. Large software companies accumulate patents to defend against the threat of an attack from others (que the friggin awesome star wars cartoon). The rare example is a company that gets a net benefit from patents (ahem…Qualcomm), most companies live in a state of detente.The bigger problem is the patent trolls. These are very smart people like (nathan myhrvold) and they are starting a new era of patent litigation. The law allows you to transfer rights to a patent to someone who has no commercial interest in developing product with the patent, rather their primary goal is extortion. This fractures the delicate detente. Patent trolls have nothing to lose (except legal fees) as their is no threat of reciprocal retaliation.I once was involved in a sale of a patent portfolio and I was amazed at the value ascribed to these assets which were effectively collecting dust. Not soon thereafter, I actually witnessed a representative of the buyer try to shake down a startup while at a conference. I hated seeing that.Patents are legalized extortion. If you are going to start writing new laws, I might start by requiring demonstrable proof that you are making efforts to commercialize the technology in order to claim damages. Kick the trolls to the curb.

  17. paramendra

    So what’s the way out? Health care reform —> Financial sector reform —> Immigration reform —> Software patent reform? Is that what?