Slashdot points to a recent blog post by Marco Arment on dealing with feature copying and imitation in software apps. Arment summaries copyright and trademark angles, noting that neither provides much defense. He then moves on to patents:
Only assholes get patents. They can be a huge PR mistake, and they’re a fool’s errand: even if you get one ($20,000+ later), you can’t afford to use it against any adversary big enough to matter.
Don’t be an asshole or a fool. Don’t get software patents.
This is a tough lesson for patent-centric university administrators to learn. Arment is discussing “apps”–software for smart phones and the like. But much the same thing applies in other areas of software development. Universities are in denial that in many areas of technological development, they play the asshole, all the while making it appear virtuous to do so.
For universities, the primary public arguments for seeking patents fail for software. Once a code is written, and proven useful, there it is. It doesn’t take millions more dollars for the code to be “developed” at great risk into a beneficial product. The code is already in the best condition for adoption–without a bunch of features and unrelated code integrated into it. That is, code before it has been “productized” may be the most accessible for adoption and use by others. A patent can prevent people from adopting a code and using it, but a patent rarely has anything to do with calling forth private risk capital that otherwise would not be made available and but for which a code simply cannot be used by anyone.
Nor is it true that what is available to all will be used by none. For code, that’s nonsense. People will use whatever is there–whether it is “legal” to do so or not. One can come off being the asshole, as Arment puts it, or one can get on with it (his emphasis):
Nobody else will care as much as you do. Nobody cares who was first, and nobody cares who copied who. The public won’t defend you.
No public interest whatsoever is served by universities obtaining patents on software. I spent fifteen years focused on software developed in university settings. Patents were millstones we hung around our necks. Yes, we obtained some patents on software–and other than starting some companies with those patents, virtually nothing good came of them. We did one modest (7 digit) patent deal involving software that played two major companies off one another after the first one rejected a simple non-exclusive license for the code and the other one was happy to make the first company regret their choice. The university was even reprimanded by the CEO of the first company: “How dare you allow mid-level managers in my company to make stupid decisions on technology of this importance!”
As Guy Kawasaki puts it in Art of the Start, “file for patents if you can, but don’t depend on them for much more than impressing your parents….”:
When talking to investors, the optimal number of times to mention that your technology is patentable is one. Zero is bad because it implies you don’t have anything proprietary. More than one means that you’re inexperienced and think patents make your business defensible.
Now I’m still lukewarm on patents. There appear to be times when patents do matter–to establish a standard, for instance, or to deal with predatory companies that will take anything they can. As one chief patent counsel at a major company informed me during a negotiation, “My job is to take everything I legally can, and your job is to try to stop me.” A patent then plays a role if “taking” isn’t the only aspect of the transaction that matters.
While for inventors, “taking” might be a problem–the inventors might want to see some financial return for their efforts, or some control over the next step in developing their work–it’s less obvious why a university all on its own might want to check such “taking.” To a great degree, here’s the fundamental equation:
use = success
Let that sink in. If the goal is that people use what has been invented at a university, then there’s no such thing as infringement. People using an invention is good enough. Is success. Indeed, that’s the fundamental goal stated in Bayh-Dole for federally supported inventions. “Utilization.” “Practical application.” “Use … with benefits available to the public on reasonable terms.”
Universities filing patent applications on software-implemented inventions generally disrupt normal approaches to adoption of new stuff. It is not the patent itself that does it, but the patent administrator that controls the patent. For instance, patents can be used to embiggen a commons–free license to anyone in the commons, but no license to anyone who asserts a patent against anyone practicing commons technology. And patents can be used to regulate a standard–FRAND license to anyone practicing the standard, but no license to anyone who claims to practice the standard but takes shortcuts that damage customers and the standard itself. And patents can be used to cross-license technology, to remove patents from the competitive mix–fifty of my patents for fifty of yours. That sort of thing neutralizes the zest that patent attorneys might otherwise have for starting a patent war–as well as the zest that some investors might have for “monetizing” a company’s patent portfolio with infringement claims.
Even university inventors might take some thought before exploiting a patent on an invention. At its base, the patent system is a form of national publication for technological priority. In that regard, it makes perfect sense for university faculty and students to seek patents–the patent publishes their invention for all and establishes their priority as inventors. There’s no particular general need in this case for the exclusive rights that come with an issued patent. Publication and priority are sufficient. Indeed, under the Kennedy executive branch patent policy, for university research with federal funding, it was enough that the government acquired rights to each invention, and then either chose not to seek a patent (thus dedicating the invention to the public domain) or seeking a patent and making the invention available on a non-exclusive, royalty-free basis. In either case, the inventors–and everyone else–had ready access to each federally supported invention, even if the federal government “owned” it.
Of course, under the Kennedy patent policy, software wasn’t generally the subject of patentable inventions. Software, for that matter, wasn’t expressly protected even by copyright until 1980 (although the Copyright Office accepted software for registration as early as 1963), and patents for computer algorithms (and “software”) gradually became permitted during the 1980s and 1990s. We might see, then, that Bayh-Dole hit at just the wrong time, making a universal (and therefore arbitrary) argument that privately held patents on all inventions were necessary for the public to benefit from federally supported research.
The reality was–and is–that only in rare instances are privately held patents important for public benefit. It’s just that university patent administrators are not the ones to figure out when–so they file applications on most anything. And that’s the flip of the federal patent administrators, who could be faulted for not being sufficiently quick to recognize the rare instance in which a privately held patent might be more in the public interest than open access for all. Bayh-Dole fixed the delays with federal patent administrators by giving university patent administrators a free hand to over-patent without accountability. (You may think Bayh-Dole is packed with accountability–use reports, march-in, and the like–but at every point, federal agencies may waive the requirement or are not required to take action, or the procedure is so cumbersome that it cannot be concluded in the time frame of need.)
Thus, university inventors might also find that a patent is nice to document priority, but that non-exclusive access, standards formation, and use = success are sufficient uses for the patent. It’s just that few people have an extra $20,000 to buy a pretty patent only to release an invention for everyone. The people willing to pay for a patent are generally not the ones willing to give rights away (though, again, companies might pay a share of the cost of a patent in order to ensure that there’s industry-wide access to a given invention–that is, pay for a patent that keeps things open; pay for a patent available to everyone who doesn’t assert infringement against the practice of the patented invention).
We can come back around, then, to Marco Arment’s point about patents in software, along with Guy Kawasaki’s point about thinking patents matter. Patents don’t defend, don’t “protect.” Patents disrupt activity that otherwise has its own moral values of innovation–ones that include imitation, adoption of standard features, following what works and what gets accepted. In this activity, patent disruption has value, of course, to speculators who may wish to bet on what patents might end up being sufficiently valuable to troll industry–or, as it is called, to be “monetized.” The small fry are not worth suing, but if a big company happens to get involved, then there’s troll work to be done.
A university, of course, can devote its reputation and resources to forming business alliances with patent trolls–or become one itself, as Caltech and others have chosen to do. It’s just not clear how the public benefits from such activity, or how such activity is consistent with a university’s public (and tax-exempt) mission. Universities swear they won’t license their inventions to patent trolls, but they then go ahead and include in their template exclusive license agreements the right for the licensee to pursue infringement claims. That’s essentially a license to troll industry, the safety net for investors in a startup more likely than not to fail. How are such deals in the public interest with regard to the results of research enterprise? Simple answer. They aren’t in the public interest.
Patents on software isn’t all-or-none. There are ways to use the patent system to limit other uses of the patent system, just as there is with copyright used against copyright. It’s just that universities are not generally set up to pay $20,000 per patent only to dedicate the rights to a commons–that is, are not set up to act in the public interest.
A more general point. Software is not the only area in which expanding the public domain may be more valuable to the public and to industry than enclosing the commons with hundreds of patents on new research findings. Research tools in general–methods, materials, and devices–don’t benefit from patents. Medical diagnostics, such as disease assays, don’t benefit from patents. Arguably, nanotechnology development has been blocked for two decades while the flurry of university patents wear off and technology is again available to all.
We can’t expect university administrators to show the restraint necessary not to file on such things, just as we cannot expect federal administrators to make quick decisions on the rare instances in which a patent might be just the thing. Certainly lawyers are no help whatsoever, nor politicians. We might then fall back on something simple–the decision of an inventor, based on the commitments the inventor has already made to participate in university research. If an inventor wants to seek a patent, then let the inventor go at it, and find someone willing to pay–the university does not have to make it easy. It may well be that the federal government should make a standing offer to receive inventions made with federal support and serve as the steward–filing patent applications and making inventions available to all on a non-exclusive basis. A university could make the same offer, if it were flush with money for patenting to embiggen commons. Any other arrangement would have to propose better terms for the inventor. Why not? Why not such a filter? If an inventor thinks there’s something more in the invention, then the invention should be worth the inventor’s effort to find investment, to find an assignee, to create a licensing program, or to start a company. Universities don’t perform a public role by helping. Nor are things made better by a university by policy taking ownership of all inventions with a commitment to “commercialization.” Such policies make things worse, much worse.
By my count, universities now hold over 50,000 patents on inventions made with federal support. They won’t publish their licensing data, but my guess based on the little information that’s out there is that fewer than 1% of those patents have resulted in commercial products. It’s very likely that university patenting of federally supported inventions has done worse than the 5% commercialization rate attributed to the federal government pre-Bayh-Dole. Not only is the university licensing rate itself worse, but universities withhold nearly all such inventions from any use while they attempt to find exclusive licensees–unlike the federal government, which released most inventions for public access. The 28,000 patents the government held were generally available to all. The 50,000 federally supported patents (and over 120,000 patents total in the Bayh-Dole era) held by universities are generally not available to anyone. As my grandmother used to ask, “Why are there so many more horse’s asses than there are horses?”