Two million lawyers?
Creating jobs for the
unemployed is a good thing, but hiring two
million patent attorneys just to track software
patents is not going to work. Timothy B. Lee and
Christina Mulligan make the good point that software
patents don't scale. A single program might infringe
many of them, you can't automatically find which
ones, and the US issues 40,000 new software patents
every year. And it's not just software companies that
have to worry. Anyone who hires a programmer, even
to put a little JavaScript on a web page, is at risk.
To really find all the software patents you need
to license, and license them, you'd need to spend
more on lawyers than on the rest of your software
development operation combined.
The one thing that's been bugging
me about the Lee and Mulligan paper, Scaling
the Patent System, is: Intellectual Ventures
founder Nathan Myhrvold, who has been filing for and
acquiring software patents at a tremendous rate, must
know this. He's a mathematician and has been working
with patent lawyers for a long time. He can't not
understand the transaction costs of researching patents and
negotiating licenses. Lee and Mulligan have done good
research and written down some important insights on
software patents for the rest of us, but none of it
is going to be news to Myhrvold.
So if he's actually mathematically literate but doing
this anyway, what's the real plan?
All that I can think of
is that it has to be something like ASCAP
for software patents. If you run a restaurant and
have music, either live or recorded, you have to pay
ASCAP, or the other performance rights organization,
BMI, for a license. You don't have to track
royalties to individual composers. ASCAP splits up
its royalty stream, according to its own formula,
and you're covered.
For software patents, you'd face something similar.
You have five programmers? That'll be 20 grand
a head, plus a 5% royalty on products and a 2.5%
royalty on services. No fuss, no patent infringement
lawsuits, and if you join now, we'll pay most of that
back to you in generous royalties on your own patents.
There are already examples at a smaller scale.
If you run Android or Samba, you can pay for
a blanket licensing agreement from Microsoft,
covering a large number of the company's
patents. And of course you can pay the MPEG
LA for a license to a pool of essential
codec patents. Where this plan is different is
in thinking big. All software, by anyone, under a
easy-to-administer license. Easy as putting an ASCAP
sticker on your door and hitting "play".
Sure, paid-up programmers would get an e-book
subscription, a hat, and a messenger bag, but
ultimately Myhrvold is on track to bring back, for
computer programmers, the guilds or "corporations"
of craftsmen that got such bad press in Adam Smith's
The Wealth of Nations. But let the
current patent wars get a little louder and more
ridiculous, and CIOs and CTOs will be thankful for
the prospect of an orderly system.
The funny thing is that most programmers above a basic
skill level will probably earn more this way—if
the paid-up license became a requirement of coding for
a living, you'd be competing against fewer marginal
programmers and wannabes.
Syndicated 2012-04-18 14:42:19 from Don Marti