January 4, 2013

Patent reasoning

Software patents are incredibly difficult to enforce.

As software becomes more complex, patents become more difficult to decipher. Only expert software engineers can truly understand the intended meaning of modern software patents.

As the total number of software patents increase over time, legislation and litigation of software patents become more complex. Only expert lawyers can successfully litigate patents.

Very few expert lawyers are also expert software engineers.

Big Software vs small software

It’s generally understood that the benefit of software patents is to ensure mutually assured destruction amongst competitors. If a competitor sues you over a patent, you countersue with your own patents.

The majority of software companies are small compared to Big Software — companies like IBM, Google, and Apple. Small software competes directly with Big Software.

In a race for patents, it is impossible for a small software company to catch up to the breadth of patents of a Big Software company. Big Software have large patent portfolios and can continue to create patents at the same (or faster) rate than small software.

It is not feasible for a small software company to generate a more effective patent portfolio than a Big Software company.

Patent trolls

Patent portfolios are known to be ineffective against patent trolls. Patent trolls are small companies or individuals who own very few unused patents (often one) and sue companies hoping for a large payout.

Mutually assured destruction does not apply since the individual has nothing to lose.


Lawyers make a lot of money off patents.

They make money advising companies on patents. They make money creating them. They make money legislating them. They make money litigating them. Lawyers win on both sides during patent disputes.

It costs software companies time and money to create and manage patents. Time and money not spent on products.

There isn’t a single downside to patents from a lawyer’s perspective. They create a dependency system that benefits lawyers.

An obvious conclusion

I’ve yet to see a single argument that software patents benefit small software companies in any way.

The US Patent Office is holding a series of round table discussions about software patents. I encourage you to participate.

If you'd like to keep in touch, I tweet @kneath on Twitter. You're also welcome to send a polite email to kyle@warpspire.com. I don't always get the chance to respond, but email is always the best way to get in touch.