Comments on: What should Web 2.0 entrepreneurs do about software patents? http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/ From the Berkman Center at Harvard Law School Wed, 18 Nov 2009 13:34:17 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Hermes http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-49403 Hermes Wed, 16 Jan 2008 12:33:11 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-49403 Cool... Cool…

]]> By: Charalambos http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-49376 Charalambos Wed, 16 Jan 2008 10:42:51 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-49376 interesting interesting

]]> By: Theodore http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-48027 Theodore Wed, 09 Jan 2008 19:38:04 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-48027 Nice... Nice…

]]> By: VCs go software patents at Wolf Richter http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-12814 VCs go software patents at Wolf Richter Fri, 02 Mar 2007 15:09:58 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-12814 [...] VCs go software patents Published by wolf.richter November 13th, 2006 in Uncategorized When I researched Intellectual property in 2002 to find a suitable topic for my master’s thesis, the web was full with articles, comments and opinions on software patents. Most of them I found to lack proper significant scientific foundations and seemed to be more driven by pursuit of a more or less hidden agendas or plain religious beliefes. Given that I wanted to work on a sizeable problem for my thesis, I decided to leave software patents and decided to do some work on the European Database Directive. Revisiting the literature more than four years later, things do not seem to have changed a lot. The big voices of cyberlaw (e.g. Lessig, Benkler, just to name two authors I read last week) acknowledge the importance of the topic and the concerns they have about freedom of innovation, but only to continue with their exegesis of current issues of copyright law. John Palfrey writes in his noteworthy blog entry on Aug 3 that “the cyberlaw community, myself included, has been so focused on copyright that we haven’t delved as deeply into patent (and trademark and trade secret, perhaps, too) as we might.” This lack of academic involvement may easily explain the lacking fact base, but might also reflect the perceived practical importance of software patents as opposed to the so far more theoretical threat it had on the development of open source software. So what immediately caught my attention was John Palfrey’s claim that the VC community had recently discovered patent protection as a means of protecting their investment. This stroke me, because I hadn’t heard that before! While in other sciences, namely chemistry and biology, using patents to get seed funding for start-up companies is common practice, VCs in the software business were very reluctant to get involved in this business. This observation is mostly based on my contacts with my former colleagues from Swiss Federal Institute in Zurich, who now mostly work as patent attorneys or licensing experts in biotech and pharma, but hardly ever deal with software. I would be very interested in getting to know more about this. Is there any reliable source of facts to back this claim? The quoted article in the Economist is mostly based on qualitative evidence and non-industry specific figures on licensing revenues. How a well working patent system, also for software, could be working is well covered in Jim Moore’s idealistic essay “The software patent process can be your friend”. What is in theory a great idea (”disclose your ideas instead of keeping them secret and get rewarded with a limited state-guaranteed monopoly” that offers a “small company” protection from “the mercy of the market strength”) looks quite different in reality. Jim explains that the expensive and resource intensive system is mainly a tool of large companies and fails to offer protection to small companies, which could need the patent protection to obtain venture capital. But that is only one of the objection against the current practice on software patents. Another much stronger argument is the limited insight contained in many software patents. Jim claims that “patent documents covering software are inherently open source, in contrast to the closed world of software trade secrets—where code is buried in compilation.” But if you read a real patent application you will hardly ever find source code. A greate example are the current patent claims of IBM against Amazon over US patents 5,796,967, 5,442,771, 7,072,849, 5,446,891 and 5,319,542. While I do not dare to judge if the “person skilled in the art” will find anything inventive in these disclosures, the MSc in Computer Sciences which I am is having some difficulties. The empricial lack of reliance on patents by VCs to me was not only proof of the structural assymmetry between “the small” and “the big” in accessing the patent system, but also due to the fact that software patents were not used to protect innovation of new market entrants but to protect existing markets by putting up a thicket of defensive patents. Is this now changing? It would be interesting to get more voices especially from the VC community, what kind of protection they require for seed funding in software and what roles software patents play in their go-to-market strategy. [...] [...] VCs go software patents Published by wolf.richter November 13th, 2006 in Uncategorized When I researched Intellectual property in 2002 to find a suitable topic for my master’s thesis, the web was full with articles, comments and opinions on software patents. Most of them I found to lack proper significant scientific foundations and seemed to be more driven by pursuit of a more or less hidden agendas or plain religious beliefes. Given that I wanted to work on a sizeable problem for my thesis, I decided to leave software patents and decided to do some work on the European Database Directive. Revisiting the literature more than four years later, things do not seem to have changed a lot. The big voices of cyberlaw (e.g. Lessig, Benkler, just to name two authors I read last week) acknowledge the importance of the topic and the concerns they have about freedom of innovation, but only to continue with their exegesis of current issues of copyright law. John Palfrey writes in his noteworthy blog entry on Aug 3 that “the cyberlaw community, myself included, has been so focused on copyright that we haven’t delved as deeply into patent (and trademark and trade secret, perhaps, too) as we might.” This lack of academic involvement may easily explain the lacking fact base, but might also reflect the perceived practical importance of software patents as opposed to the so far more theoretical threat it had on the development of open source software. So what immediately caught my attention was John Palfrey’s claim that the VC community had recently discovered patent protection as a means of protecting their investment. This stroke me, because I hadn’t heard that before! While in other sciences, namely chemistry and biology, using patents to get seed funding for start-up companies is common practice, VCs in the software business were very reluctant to get involved in this business. This observation is mostly based on my contacts with my former colleagues from Swiss Federal Institute in Zurich, who now mostly work as patent attorneys or licensing experts in biotech and pharma, but hardly ever deal with software. I would be very interested in getting to know more about this. Is there any reliable source of facts to back this claim? The quoted article in the Economist is mostly based on qualitative evidence and non-industry specific figures on licensing revenues. How a well working patent system, also for software, could be working is well covered in Jim Moore’s idealistic essay “The software patent process can be your friend”. What is in theory a great idea (”disclose your ideas instead of keeping them secret and get rewarded with a limited state-guaranteed monopoly” that offers a “small company” protection from “the mercy of the market strength”) looks quite different in reality. Jim explains that the expensive and resource intensive system is mainly a tool of large companies and fails to offer protection to small companies, which could need the patent protection to obtain venture capital. But that is only one of the objection against the current practice on software patents. Another much stronger argument is the limited insight contained in many software patents. Jim claims that “patent documents covering software are inherently open source, in contrast to the closed world of software trade secrets—where code is buried in compilation.” But if you read a real patent application you will hardly ever find source code. A greate example are the current patent claims of IBM against Amazon over US patents 5,796,967, 5,442,771, 7,072,849, 5,446,891 and 5,319,542. While I do not dare to judge if the “person skilled in the art” will find anything inventive in these disclosures, the MSc in Computer Sciences which I am is having some difficulties. The empricial lack of reliance on patents by VCs to me was not only proof of the structural assymmetry between “the small” and “the big” in accessing the patent system, but also due to the fact that software patents were not used to protect innovation of new market entrants but to protect existing markets by putting up a thicket of defensive patents. Is this now changing? It would be interesting to get more voices especially from the VC community, what kind of protection they require for seed funding in software and what roles software patents play in their go-to-market strategy. [...]

]]> By: John Palfrey » Blog Archive » More patenting in the RSS space http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-3695 John Palfrey » Blog Archive » More patenting in the RSS space Fri, 22 Dec 2006 21:54:24 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-3695 [...] As a follow-up to earlier posts on this topic: Microsoft has filed a large-scale patent application related to RSS. (A news story here and Dave Winer’s post on it here.) Microsoft’s patent application, filed on June 21, 2005, reads: [...] [...] As a follow-up to earlier posts on this topic: Microsoft has filed a large-scale patent application related to RSS. (A news story here and Dave Winer’s post on it here.) Microsoft’s patent application, filed on June 21, 2005, reads: [...]

]]> By: VC go software patents at Wolf Richter http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-2498 VC go software patents at Wolf Richter Mon, 13 Nov 2006 11:16:56 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-2498 [...] When I researched Intellectual property in 2002 to find a suitable topic for my master’s thesis, the web was full with articles, comments and opinions on software patents. Most of them I found to lack proper significant scientific foundations and seemed to be more driven by pursuit of a more or less hidden agendas or plain religious beliefes. Given that I wanted to work on a sizeable problem for my thesis, I decided to leave software patents and decided to do some work on the European Database Directive. Revisiting the literature more than four years later, things do not seem to have changed a lot. The big voices of cyberlaw (e.g. Lessig, Benkler, just to name two authors I read last week) acknowledge the importance of the topic and the concerns they have about freedom of innovation, but only to continue with their exegesis of current issues of copyright law. John Palfrey writes in his noteworthy blog entry on Aug 3 that “the cyberlaw community, myself included, has been so focused on copyright that we haven’t delved as deeply into patent (and trademark and trade secret, perhaps, too) as we might.” This lack of academic involvement may easily explain the lacking fact base, but might also reflect the perceived practical importance of software patents as opposed to the so far more theoretical threat it had on the development of open source software. So what immediately caught my attention was John Palfrey’s claim that the VC community had recently discovered patent protection as a means of protecting their investment. This stroke me, because I hadn’t heard that before! While in other sciences, namely chemistry and biology, using patents to get seed funding for start-up companies is common practice, VCs in the software business were very reluctant to get involved in this business. This observation is mostly based on my contacts with my former colleagues from Swiss Federal Institute in Zurich, who now mostly work as patent attorneys or licensing experts in biotech and pharma, but hardly ever deal with software. I would be very interested in getting to know more about this. Is there any reliable source of facts to back this claim? The quoted article in the Economist is mostly based on qualitative evidence and non-industry specific figures on licensing revenues. How a well working patent system, also for software, could be working is well covered in Jim Moore’s idealistic essay “The software patent process can be your friend”. What is in theory a great idea (”disclose your ideas instead of keeping them secret and get rewarded with a limited state-guaranteed monopoly” that offers a “small company” protection from “the mercy of the market strength”) looks quite different in reality. Jim explains that the expensive and resource intensive system is mainly a tool of large companies and fails to offer protection to small companies, which could need the patent protection to obtain venture capital. But that is only one of the objection against the current practice on software patents. Another much stronger argument is the limited insight contained in many software patents. Jim claims that “patent documents covering software are inherently open source, in contrast to the closed world of software trade secrets—where code is buried in compilation.” But if you read a real patent application you will hardly ever find source code. A greate example are the current patent claims of IBM against Amazon over US patents 5,796,967, 5,442,771, 7,072,849, 5,446,891 and 5,319,542. While I do not dare to judge if the “person skilled in the art” will find anything inventive in these disclosures, the MSc in Computer Sciences which I am is having some difficulties. The empricial lack of reliance on patents by VCs to me was not only proof of the structural assymmetry between “the small” and “the big” in accessing the patent system, but also due to the fact that software patents were not used to protect innovation of new market entrants but to protect existing markets by putting up a thicket of defensive patents. Is this now changing? It would be interesting to get more voices especially from the VC community, what kind of protection they require for seed funding in software and what roles software patents play in their go-to-market strategy. [...] [...] When I researched Intellectual property in 2002 to find a suitable topic for my master’s thesis, the web was full with articles, comments and opinions on software patents. Most of them I found to lack proper significant scientific foundations and seemed to be more driven by pursuit of a more or less hidden agendas or plain religious beliefes. Given that I wanted to work on a sizeable problem for my thesis, I decided to leave software patents and decided to do some work on the European Database Directive. Revisiting the literature more than four years later, things do not seem to have changed a lot. The big voices of cyberlaw (e.g. Lessig, Benkler, just to name two authors I read last week) acknowledge the importance of the topic and the concerns they have about freedom of innovation, but only to continue with their exegesis of current issues of copyright law. John Palfrey writes in his noteworthy blog entry on Aug 3 that “the cyberlaw community, myself included, has been so focused on copyright that we haven’t delved as deeply into patent (and trademark and trade secret, perhaps, too) as we might.” This lack of academic involvement may easily explain the lacking fact base, but might also reflect the perceived practical importance of software patents as opposed to the so far more theoretical threat it had on the development of open source software. So what immediately caught my attention was John Palfrey’s claim that the VC community had recently discovered patent protection as a means of protecting their investment. This stroke me, because I hadn’t heard that before! While in other sciences, namely chemistry and biology, using patents to get seed funding for start-up companies is common practice, VCs in the software business were very reluctant to get involved in this business. This observation is mostly based on my contacts with my former colleagues from Swiss Federal Institute in Zurich, who now mostly work as patent attorneys or licensing experts in biotech and pharma, but hardly ever deal with software. I would be very interested in getting to know more about this. Is there any reliable source of facts to back this claim? The quoted article in the Economist is mostly based on qualitative evidence and non-industry specific figures on licensing revenues. How a well working patent system, also for software, could be working is well covered in Jim Moore’s idealistic essay “The software patent process can be your friend”. What is in theory a great idea (”disclose your ideas instead of keeping them secret and get rewarded with a limited state-guaranteed monopoly” that offers a “small company” protection from “the mercy of the market strength”) looks quite different in reality. Jim explains that the expensive and resource intensive system is mainly a tool of large companies and fails to offer protection to small companies, which could need the patent protection to obtain venture capital. But that is only one of the objection against the current practice on software patents. Another much stronger argument is the limited insight contained in many software patents. Jim claims that “patent documents covering software are inherently open source, in contrast to the closed world of software trade secrets—where code is buried in compilation.” But if you read a real patent application you will hardly ever find source code. A greate example are the current patent claims of IBM against Amazon over US patents 5,796,967, 5,442,771, 7,072,849, 5,446,891 and 5,319,542. While I do not dare to judge if the “person skilled in the art” will find anything inventive in these disclosures, the MSc in Computer Sciences which I am is having some difficulties. The empricial lack of reliance on patents by VCs to me was not only proof of the structural assymmetry between “the small” and “the big” in accessing the patent system, but also due to the fact that software patents were not used to protect innovation of new market entrants but to protect existing markets by putting up a thicket of defensive patents. Is this now changing? It would be interesting to get more voices especially from the VC community, what kind of protection they require for seed funding in software and what roles software patents play in their go-to-market strategy. [...]

]]> By: marazzi http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-2030 marazzi Tue, 26 Sep 2006 15:21:34 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-2030 MARAZZI prin omnitechgroup MARAZZI prin omnitechgroup

]]> By: Cristian Miceli http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-2019 Cristian Miceli Sun, 17 Sep 2006 10:44:57 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-2019 Dear Professor Palfrey I am an IT lawyer in the UK with a strong interest in software patents having worked with developers and IT companies for many years. I can see that there is a great deal of pragmitism in your article and for US start-up software companies there is a real challenge because, whether they agree with software patents or not, they are within a system that does accept them. In such a scenario, the reality for many is that they need to file defensive patents in the US purely from the point of view of protecting the financial stability of the company by warding off possible litigation (although, even then, it costs a great deal to simply challenge a spurious claim(s) because of the 'shades of grey' problem of how patent claims are drafted). However, as someone who does not believe in software patents, this is as far as I would go in the US, as to consider issues such as cross-licensing, is to take a further step in accepting a fundamentally flawed IP system for software. Although cross-licensing and similar strategies might alleviate some of the negative effects of the patent system, these strategies effectively encourage the patenting of software (including the waste of human resources and money which is diverted away from software development to filing and maintaining patents and analysing third party patents) and detract from probing deeper into the very essence of patenting (monopolisation) as a mechanism for fostering innovation in the software industry. In 2005, I spent a considerable time researching (not as an academic but as a practising lawyer) whether the patent system was appropriate for software in the context of the debate over the'Software Patent Directive' in Europe and recent case law in England. Although I am not against computer-assisted inventions (provided the software involved is not patented per se), my overall conclusion was that copyright (perhaps tweaked slightly) rather than patents is more appropriate to fostering innovation in this sector and protecting the investment made by developers. If you are interested, the article/paper can be found at www.groklaw.net/pdf/Swptft(final)(v2).pdf. Kind regards Cristian Miceli www.lasporg.info lasporg'at'googlemail.com Dear Professor Palfrey

I am an IT lawyer in the UK with a strong interest in software patents having worked with developers and IT companies for many years.

I can see that there is a great deal of pragmitism in your article and for US start-up software companies there is a real challenge because, whether they agree with software patents or not, they are within a system that does accept them. In such a scenario, the reality for many is that they need to file defensive patents in the US purely from the point of view of protecting the financial stability of the company by warding off possible litigation (although, even then, it costs a great deal to simply challenge a spurious claim(s) because of the ’shades of grey’ problem of how patent claims are drafted). However, as someone who does not believe in software patents, this is as far as I would go in the US, as to consider issues such as cross-licensing, is to take a further step in accepting a fundamentally flawed IP system for software. Although cross-licensing and similar strategies might alleviate some of the negative effects of the patent system, these strategies effectively encourage the patenting of software (including the waste of human resources and money which is diverted away from software development to filing and maintaining patents and analysing third party patents) and detract from probing deeper into the very essence of patenting (monopolisation) as a mechanism for fostering innovation in the software industry. In 2005, I spent a considerable time researching (not as an academic but as a practising lawyer) whether the patent system was appropriate for software in the context of the debate over the’Software Patent Directive’ in Europe and recent case law in England. Although I am not against computer-assisted inventions (provided the software involved is not patented per se), my overall conclusion was that copyright (perhaps tweaked slightly) rather than patents is more appropriate to fostering innovation in this sector and protecting the investment made by developers. If you are interested, the article/paper can be found at http://www.groklaw.net/pdf/Swptft(final)(v2).pdf.

Kind regards

Cristian Miceli
http://www.lasporg.info
lasporg’at’googlemail.com

]]> By: me13thinks http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-1868 me13thinks Thu, 03 Aug 2006 19:53:16 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-1868 <strong>What should Web 2.0 entrepreneurs do about software patents?...</strong> nice..... What should Web 2.0 entrepreneurs do about software patents?…

nice…..

]]> By: phil http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-about-software-patents/comment-page-1/#comment-1867 phil Thu, 03 Aug 2006 18:18:25 +0000 http://blogs.law.harvard.edu/palfrey/2006/08/03/what-should-web-20-entrepreneurs-do-a#comment-1867 You should also check out this: http://www.paulgraham.com/softwarepatents.html You should also check out this:

http://www.paulgraham.com/softwarepatents.html

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