Economic research on patent licensing by industry demonstrates a maturity curve. Disputes over intellectual property are comparatively rare in industries where intellectual property ownership has long been accepted, such as semiconductors, electronics, telecommunications and biotechnology. Intellectual property licensing is well-understood and actively pursued among companes. While there is inevitable grumbling about prices, generally-acceptable licensing terms have been established in these industries. Most important, there is a vibrant sub-sector of each of these industries where “invention companies” thrive as part of the ecosystem. I have a loft near MIT on Brookline Street, and all around me are biotech idea companies living happy, comfortable lives tackling hard intellectual problems, developing inventions and intellectual property, and licensing the resulting technology solutions to larger industry players who provide downstream development, testing, marketing and distribution.
By contrast in software intellectual property practices are strikingly immature. This can be hard for outsiders to understand, as there is very little real difference between software inventions and analogous inventions in semiconductors, electronics, telecom and biotech.
Why is the intellectual property ethos so immature in the software industry? Mostly because software as a distinct field was so abstract as to be almost invisible until the 1980s. In the academic engineering world, software started out in applied mathematics and computer science as a field came relatively recently. In business, software was seen as a necessary part of hardware, not as a distinct product or service offering. Indeed, up until the 1980s software was typically given away by hardware companies in order to sell their (big) iron. It took an anti-trust settlement with IBM regarding the IBM 360 mainframe to force IBM to unbundle software from hardware. In the minicomputer days, Sun Microsystems was one of the first companies to see software as the basis for a distinct business–an idea that was considered radical at the time. The layered architecture of the personal computer world finally enabled software companies to form a distinct, free-standing industry.
Software patents became recognized as a distinct, official domain of invention in the United States in the mid-1980s. Telecom patents by contrast went back to the beginning of the century.
In the long history of intellectual property, software in now coming of age.
In the software industry companies large and small continue to underemphasize intellectual property licensing. The rationalized ethos of cross-licensing among companies is barely developed. Instead, firms large and small continue to come to blows on the few propery conflicts that rise to high stakes. A myriad of opportunies for licensing and collaboration on intellectual property development are ignored, and–importantly–infringement is a daily business practice.
Slowly, however, the industry is growing up. IBM sets the right pattern in some ways. IBM has long offered to license pretty much any of its 34,000 owned and 45,000 owned-or-controlled patents for 1% of another company’s “relevant revenue” (i.e. revenue directly attributable to employing the patented intellectual property). IBM typically would offer its entire portfolio for 5% of revenues. For many years, other firms found this deal attractive.
Today IBM will license most of its software intellectual property portfolio for 1% of relevant revenues in total. The thinking seems to be that most firms can expect to be licensing software intellectual property from several others. Thus 5% is probably what a firm can reasonably budget for all of its relevant licenses, so IBM figures 1%, or 1 of 5 points, is about what the market will bear for its contributions. This seems a reasonable assumption to me. In other industries, this percentage is about the norm.
We are also seeing the beginnings of a distinction in the software industry between invention and distribution. IBM, interestingly, is becoming more of a distribution firm (a systems integrator), relying on others’ ideas–while continuing its own lab, as well. Google, on the other hand, appears to be investing heavily in ideas–while developing its distribution platform.
What I think will be a most interesting next development is the rise of smaller, entrepreneurial invention firms in software. I look forward to Brookline Street in Cambridge being lined with small software engineering firms solving the hardest problems on the planet–and partnering with larger firms to take the resulting inventions to the world market.
