Monday, April 30, 2012

Fixing Software Patents, One Hack At Time

Software patents are broken and patent trolls are seriously hurting innovation. Companies are spending more money on buying patents to launch offensive strikes against other companies instead of competing by building great products. There are numerous patent horror stories I could outline where they are being used for all purposes except to innovate. In fact the software patent system as it stands today has nothing to do with innovation at all. This is the sad side of the Silicon Valley. While most people are whining about how software patent trolls are killing innovation some are trying to find creative ways to fix the problems. This is why it was refreshing to see Twitter announcing their policy on patents, Innovator's Patent Agreement, informally called IPA. As per IPA, patents can only be used in an offensive litigation if the employees who were granted the patents consent to it. I have no legal expertise to comment on how well IPA itself might hold up in a patent litigation but I am thrilled to see companies like Twitter stepping up to challenge the status quo by doing something different about it. If you're an employee you want three things: innovate, get credit for your innovation, and avoid your patents being used as an offensive tool. IPA is also likely to serve as a hiring magnet for great talent. Many other companies are likely to follow the suit. I also know of a couple of VCs that are aggressively pushing their portfolio companies to adopt IPA.

The other major challenge with software patents is the bogus patents granted based on obvious ideas. I really like the approach taken by Article One Partners to deal with such patent trolls. Article One Partners crowdsources the task of digging the prior art to identify bogus patents and subsequently forces the US patent office to invalidate them. Turns out that you don't have to be a lawyer to find prior art. Many amateurs who love to research this kind of stuff have jumped into this initiative and have managed to find prior art for many bogus patents. It's very hard to change the system but it's not too hard to find creative ways to fix parts of the system.

I would suggest going beyond the idea of crowdsourcing the task to find the prior art. We should build open tools to gather and catalog searchable prior art. If you have an idea just enter into that database and it becomes prior art. This would make it incredibly difficult for any company to patent an obvious idea since it would already be a prior art. We should create prior art instead of reactively research for it. Open source has taught us many things and it's such a vibrant community. I can't imagine the state of our industry without open source. Why can't we do the same for patents? I want to see Creative Commons of patents.

The industry should also create tools to reverse translate patents by taking all the legal language out of it to bring transparency to show for what purposes that patents are being granted for.

I would also want to see an open source like movement where a ridiculously large set of patents belong to one group - a GitHub of patents. And that group will go after anyone who attempt to impede innovation by launching an offensive strike. If you can't beat a troll then become one.

Silicon valley is a hacker community and hackers should do what they are good at, hack the system — to fix it — using creative ways.


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