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August 05, 2010



If you talk to people about startups, they'll tell you that software patents are worthless to them. Companies will just violate your patent or work around it and they can copy your idea pretty easily. i4i was pretty much an outlier.

What VCs look for are things like a good team with strong domain expertise, which competitors can't acquire easily.

They don't care that much about how many patents you have. Yeah, they do affect your valuation, but that only matters if you fail and they have to sell off the company piecemeal. They'd much rather invest in a company they believe will be successful than one they can dismantle for a tiny profit, after all.

Abe Alony

How the hell does this buffoon get off reading the minds of the Supreme Court Justices. Reds get a free pass I guess.


Abe, you ought to consider who you are talking about before you spout such rubbish. Moglen is an acknowledged expert in the area with years of experience. Slavish devotion to the views and judgments of the Supreme Court is precisely the kind of attitude which maintains the sort of unsatisfactory status quo that has endured for the last few decades..


I disagree with Q.
A good patent is the only way a startup can prevent a Google or Microsoft from just copying their idea and putting them out of business.

The number of new ventures in which domain expertise is a sustainable advantage is, in my experience, vanishingly small. It is much easier (and cheaper) to hire a domain expert than to overcome a well-drafted patent.

It is silly to conclude that all software patents are a plague on society, simply because one can site examples of abuse of the system. Perhaps the recent economic crisis should lead us all to conclude that owning a home is evil as well??

Ciaran O'Riordan

@anonymous: Patent cases require two things: years and hundreds of thousands of dollars. Now, guess what startups don't have.

Even if the startup won in court, just watch them try to commercialise a product when a bruised Goliath with thousands of patents is just waiting to get back.

The need to acquire and license patents is a tax on development. In some fields, there might be benefits that make this worthwhile, but the participation costs in software are so low that such taxes end up being a relatively huge cost. Further, the per-unit royalties clash with the zero marginal cost of software and break many software distribution models.

If you make an innovative word processor and it doesn't visually resemble existing word processors or it can't read and write the file formats commonly used, it's simply not a functional word processor. You can patent your innovative features, and the established companies will just skip those features, and they can patent their features and you're blocked from implementing something that users consider essential. There's no public interest case for patents in software.

Gregory Maxwell

@anonymous: Not only do startups lack the resources to enforce patents, as Ciaran points out, but their hand is usually tied by counter-claims.

Single patents are not effective. Patents which are narrowly scoped enough to stand up in court tend to be easy to avoid. Expansive patents which are hard to avoid are more costly to obtain, since you may need to make many attempts, and they tend to be rejected in review or get narrowed during litigation.

The only effective way to use patents is to create a minefield of mixed narrow and broad patents covering a whole subject area. This is a game that only the biggest players can play effectively.

If you're working in an area that a company like Microsoft is interested in they almost certainly hold _thousands_ of patents potentially covering the fundamentals of your field. Simply reviewing the patents to determine your exposure can be costly enough to put you out of business. If you enforce your patent claims against them the counter-suits will be devastating. Even if you are clear of actual infringement there will be enough 'close calls' that they can sink you with litigation long before you can demonstrate your innocence in court.

The question anyone should ask here is "Did I go into business to innovate or did I go into business to litigate?" If the answer is the former— the patent system is not helpful for you. If the answer is the latter then there exist better business models which involve no real invention (and thus no risk of infringement counter-claims).


If you have a novel idea, then obtaining a patent does not take hundreds of thousands of dollars. It may take time, but not so much that I would forgo the filing.

If your startup is successful to the point that a Google or Microsoft wants to copy you, then you can afford to assert your patent in order to protect your rights.

I agree that you may lose if Google or Microsoft decide to assert every patent they may own, but why would they bother with the expense? Out of spite? They are businesses looking at the bottom line.

Most likely a cross-licensing deal can be reached. If you have a patent, then you can bargain. If you do not have a patent, you get NOTHING.

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