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| James Bessen's Latest Paper on Software Patents |
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Monday, June 27 2011 @ 04:00 PM EDT
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Anyone who has studied software patents and the debate about their utility has surely run across the work of James Bessen. We have certainly mentioned his past papers co-authored with Robert Hunt, Michael Meurer, and Eric Masking, and the Bessen/Meurer book, Patent Failure, takes an in-depth look at why our U.S. patent system does not work well with certain technologies, particularly software. Prof. Bessen has a new paper out entitled "A Generation of Software Patents." Not surprisingly, in the paper Bessen writes that "it is hard to conclude that software patents have provided a net social benefit in the software industry."
This paper is largely a compilation and survey of the literature on software patents, both for and against, that has published over the last several years, and it contains a number of useful nuggets. For example, while some have asserted that patents are important to software start-ups (see, High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley
Patent Survey, Stuart Graham et al, 24 Berkeley Tech. L.J. 1255, 1270-71 (2009) [PDF], in which they found "67% of
software startups backed by venture capital held patents", Ron Mann conducted a regression analysis and found that “patenting practices have at best a minuscule ability to
predict the success of a venture-backed software startup.” (See, Ronald. J. Mann & Thomas W. Sager, Patents, Venture Capital, and Software Start-ups, 36 Res. Pol'y 193, 197
(2007) [PDF]. Suffice it to say, there is some worthwhile reading in this paper and the various works referenced in it. Enjoy.
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| Authored by: jplatt39 on Monday, June 27 2011 @ 04:17 PM EDT |
| If any. [ Reply to This | # ]
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| Authored by: jplatt39 on Monday, June 27 2011 @ 04:19 PM EDT |
Make links clickable. On-topic comments will be ignored. Read the Important
Stuff at the bottom of the Post a Comment page. Remember, Preview is your
friend.[ Reply to This | # ]
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| Authored by: jplatt39 on Monday, June 27 2011 @ 04:20 PM EDT |
| Please use the title of the Newspick for the item you are commenting on. [ Reply to This | # ]
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| Authored by: jplatt39 on Monday, June 27 2011 @ 04:21 PM EDT |
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| Authored by: Anonymous on Monday, June 27 2011 @ 09:27 PM EDT |
I look forward to the day when lawyers, judges and more
importantly congress understand that patenting software is
the equivalent of patenting legal defense theories or
methods of appropriating federal tax dollars for localized
political interests (pork). They are removing entire swaths
of mathematics, algorithms, expression and language from our
discipline in arbitrary and impossible to grok ways with
patents on the trivial solutions to everyday problems.
After a lawyer is sued for $20 million for utilization of
the patent 1234 "innocence by virtue of insanity" or patent
12345 "unjust enrichment" in the defense of their clients,
perhaps the legal professions will understand the difference
between algorithms, logic, language and inventions deserving
of a patent.
Valid or not (from a legal perspective), every day software
engineers are almost certainly infringing on thousands of
patents whose inventions are trivially replicated for which
the validity and applicability can only be determined after
millions of dollars in legal fees.
If an software engineer were so foolish to attempt to
determine whether or their work on Monday violated some
patent, there is effectively no chance a search of the (from
an outside perspective) purposefully obscured legalese of
granted, extended, and kept alive past the shelf life of
Twinkies patent applications would allow one to say
definitively yes or no a patent has been violated.
A patent system can not function where a single person can
innocently and unknowingly violate tens or thousands of
patents in a single day of work solving every day problems.[ Reply to This | # ]
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| Authored by: IMANAL_TOO on Tuesday, June 28 2011 @ 06:03 AM EDT |
When I read Mann & Sager (2005) I was struck that they
concluded
One way to understand the data is that the existence of
patents is much more important to a firm’s success than the number of patents
that it has, and that the number of patents depends on the nature of the
technology.We draw some tentative support for that point from the consistency
with which our data illustrated that the performance variables had a more
significant relation to the patent/no patent variable than to the
number-of-patents variable.
and
Although we cannot
answer the ultimate welfare question – would the industry be better without
patents than it is with patents – we do shed a great deal of light on the
reasons why so many firms do – and do not – choose to expend the time and
resources necessary to obtain patents to protect their innovative
work.
In an aquarium hypothesis these examined sharks live in a
software patent aquarium, the US market. Can you really examine these from a
non-patent perspective (cf. Gödel)? Even the 76% which do not have any patents
in the US market do have to compete with those who have.
I guess one
would need to re-examine the issue and compare the successful and unsuccessful,
venture and non-venture software companies in the US with the non-patent aquaria
of the European and Asian markets.
Otherwise I cannot see how to
estimate the relevance of patents, venture money, success to a non-patent
situation. Maybe Bessen discusses this, I haven't read it
yet.
---
______
IMANAL
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| Authored by: Anonymous on Tuesday, June 28 2011 @ 07:41 AM EDT |
From the business start up courses I have taken, no one has said that
Patent's improve a companies chances of success. Instead, the arguments for
patenting are:
Patents give the company leverage when they become
involved in Patent Suits / Patent
Licensing.
and
Patents provide the venture capital
company with an asset in the event the company closes.
The exit
strategies for the venture capital firm is to sell the patent, and/or to become
patent trolls.[ Reply to This | # ]
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- Hmmmm... - Authored by: Anonymous on Tuesday, June 28 2011 @ 01:50 PM EDT
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| Authored by: Anonymous on Thursday, June 30 2011 @ 04:21 AM EDT |
For example, while some have asserted that patents are important to
software start-ups (see, High Technology Entrepreneurs and the Patent System:
Results of the 2008 Berkeley Patent Survey, Stuart Graham et al, 24 Berkeley
Tech. L.J. 1255, 1270-71 (2009) [PDF], in which they found "67% of software
startups backed by venture capital held patents", Ron Mann conducted a
regression analysis and found that “patenting practices have at best a minuscule
ability to predict the success of a venture-backed software startup.” (See,
Ronald. J. Mann & Thomas W. Sager, Patents, Venture Capital, and Software
Start-ups, 36 Res. Pol'y 193, 197 (2007) [PDF]. Suffice it to say, there is some
worthwhile reading in this paper and the various works referenced in it.
Enjoy.
Concerning the "67% of software startups backed by venture
capital" that held software patents - the question is why? Did they seek it on
their own? Or only b/c the VC's told them that was the only way they'd get the
VC money? I would gander a guess that most likely they only sought the patents
to get the money - which goes to say, are the patents really worth anything to
start with? Given its a startup there is nothing validated by the courts, so it
at best a dubious asset for the VC's in an industry where, as the paper says,
software patents are of unproven value to the industry.
It'd be one
thing for VCs to insist on it if the start-up was making micro-processors and
patenting some manufacturing technique - that's a proven method of securing the
technology - but it's another in a fledgling industry where patents have yet to
be proven to be of any use or value in helping the industry.[ Reply to This | # ]
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