
A Software Entrepreneur On The Madness Of Software Patents and Trolls - azakai
http://www.feld.com/wp/archives/2012/08/a-software-entrepreneur-on-the-madness-of-software-patents-and-trolls.html
======
noonespecial
_One lawyer I consulted told me not to read the patents- they were irrelevant.
And the troll agrees. He said he didn’t really understand my business and
didn’t care. We just looked like other companies he has sued._

This is kind of important. We spend a lot of time worrying about the patent.
Its the least important part of the equation. The important thing to
understand is that you're being mugged, and the police aren't coming. They
know its bad, but there are much bigger things on their plate than petty
crime. The actual patent is just the gun/knife used in the mugging, a
completely common and non-unique weapon.

What the entrepreneurial community needs is a common sense guide to surviving
a legal mugging just like the ones that address realworld muggings. There are
simple things that a person can do as the victim of street crime that can
greatly improve their chances of survival while minimizing loss. What might
these best practices look like for startups facing trolls?

~~~
batgaijin
Eh, all it takes is one random country with low taxes saying they don't
respect IP laws. Cue US having a hissy fit, which in turn simply notifies
other countries that it's a tactic that actually works. I look forward to that
hydra rising.

~~~
honzzz
Many countries do respect IP laws... they just do not have software patents.
For example EU countries - huge, developed market, technologically advanced
with well educated people. Their start-ups used to go to the Valley because
that was the best place to be for start-ups... but now when Americans managed
to create such toxic anti-innovative legal environment maybe this will change.

------
equity
Couldn't you just ignore the lawsuit? Presumably they are after big bucks, and
it is a pain and huge cost to continue with legal proceedings. And you are
probably one of a thousand threats they send out. They are in-business too and
don't want to waste their time on cases that don't pan out. Do you really
think they will actually take you to court? I suspect they may just drop it if
you ignore it, unless you are a big name startup with deep pockets. For the
patent trolls, this is just a numbers game. If you send out a lot, a certain
percentage will settle... Note: I am not a lawyer and this does not constitute
legal advice.

~~~
brazzy
For the troll, legal is their business, and the costs much lower because the
ARE the lawyers. And they will not easily back off because that news would
spread and suddenly everyone would ignore them, which would make their
business much harder. It's not the same as frauds that send out tens of
thousands of fake invoices for $50 in the hope that many will pay out of
laziness and without spending time on research. Patent troll "license fees"
are too high for that.

~~~
equity
Although trolls are lawyers, there is still a "cost", and in this cost is time
and the opportunity cost of spending time elsewhere. Going to court, getting a
judgement and collecting fees is a huge time sink. Patent trolls are not dumb.
They will litigate when you are a big fish.

~~~
brazzy
Or when they want to keep the threat of litigation credible in order to extort
out-of-court settlements.

------
brazzy
Ultimately, what makes patent trolls so dangerous is that they're an
asymmetric threat: one troll needs only the resources to fight one lawsuit to
be able to make thousands of companies pay the extortion fee, and while only
one of them would have to fight and win, it isn't rational for any one of them
to do so Could that be sthe solution? Victims setting up shared defense funds
to get the patents overturned, where each victim only has to pay a few
thousand dollars?

~~~
smutticus
It's even worse. The way things currently are incentivizes patent trolls to
NOT create anything. Because then the companies they're suing might have a
defensive patent they could use against the troll to exact a settlement.
Patent trolls are incentivized to not create any value lest that value be used
against them.

~~~
honzzz
It seems to me that the US patent law is a system for transferring money from
those who actually do stuff to those who don't.

This is huge burden on business. Fear of getting sued to death is not the best
motivation for creating new and exciting things - are you not afraid that
start-ups will start to move out of US jurisdiction?

I know that Silicon Valley is the best place for start-ups and whatnot... but
is it still worth it? Seeing lawsuit after lawsuit... I would never
incorporate in the US - would you?

~~~
luriel
> It seems to me that the US patent law is a system for transferring money
> from those who actually do stuff to those who don't.

This is not surprising from an economic point of view once you realize that
the patent system is basically a system of government granted monopolies.

~~~
honzzz
But that "system of government granted monopolies" was supposed to channel
money to those who create stuff, not from them. The problem with patent law is
not that its government granted monopoly but that it's granted to those who do
not bring anything to society and is used against those who do.

------
pervycreeper
Here's the thing: this guy probably didn't care all that much about software
patents before his company was sued and it became a personal issue for him.
The public at large is unlikely to be moved by something as abstract and
(ostensibly) abstruse as software patents unless a clear case can be made
about what's really at stake. This difficulty is compounded by the fact that
the big companies can afford to license and defend if need be, so the stifling
effects of software patents are even harder to see. How can we measure what
might have been?

------
kenster07
Imagine if Pythagoras, Leibniz, and Newton were able to receive patents for
their formulas. What if the quadratic formula was patented? In fact, why not?

Actually, I retract that argument. The average software patent nowadays does
not even begin to approach the caliber of the aforementioned discoveries.

~~~
anamax
> What if the quadratic formula was patented? In fact, why not?

Because it's math, and math isn't patentable.

And no, software patents aren't patenting math. They're patenting specific
mechanisms used to perform specific tasks.

Here's another way to think of it. You can't patent physical phenomena.
However, you can patent a process that uses heat to cure rubber.

~~~
darkestkhan
And that is why there are no software patents in Poland - software is math. In
fact every software ever created could be written as math formula in lambda
calculus.

~~~
zvrba
> software is math

No, it's not. Math does not have side-effects. Software does have side-effects
since it runs on physical devices connected to the physical world.

~~~
daliusd
Here is problem. Patented algorithms/software usually don't have any physical
world implementation. Thus it is math by your definition.

~~~
anamax
< Patented algorithms/software usually don't have any physical world
implementation.

Huh?

Take the "apple bounce" patent. I can see images move on a screen. How did
that happen without a "physical world implementation"?

Note that the "cure rubber with heat" patent mentioned abouve covered a
process, a set of steps. It wasn't a patent on a rubber curing machine.

------
the-expert
He says his company has zero revenue but is being sued by a patent troll.

That doesn't make much sense without some more details.

What does the troll want?

Maybe it's not cash upfront?

------
cm127
It's a shame the courts can't revoke some of these patents that are completely
full of shit. You'd think if a troll would just lose once, it'd be over.

~~~
brazzy
The problem is that it takes someone fighting a lawsuit for hundreds of
thoudsands of dollars to get a patent declared invalid (and it's never a sure
thing) , but only a few hundred or thousand dollars to get a new patent.

