Essays

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When we were working on Viaweb, a bigger company in the e-commerce business was granted a patent on online ordering, or something like that. I got a call from a VP there asking if we'd like to license it. I replied that I thought the patent was completely bogus, and would never hold up in court. "Ok," he replied. "So, are you guys hiring?"

If your startup grows big enough, however, you'll start to get sued, no matter what you do. If you go public, for example, you'll be sued by multiple patent trolls who hope you'll pay them off to go away. More on them later.

In other words, no one will sue you for patent infringement till you have money, and once you have money, people will sue you whether they have grounds to or not. So I advise fatalism. Don't waste your time worrying about patent infringement. You're probably violating a patent every time you tie your shoelaces. At the start, at least, just worry about making something great and getting lots of users. If you grow to the point where anyone considers you worth attacking, you're doing well.

We do advise the companies we fund to apply for patents, but not so they can sue competitors. Successful startups either get bought or grow into big companies. If a startup wants to grow into a big company, they should apply for patents to build up the patent portfolio they'll need to maintain an armed truce with other big companies. If they want to get bought, they should apply for patents because patents are part of the mating dance with acquirers.

Most startups that succeed do it by getting bought, and most acquirers care about patents. Startup acquisitions are usually a build-vs-buy decision for the acquirer. Should we buy this little startup or build our own? And two things, especially, make them decide not to build their own: if you already have a large and rapidly growing user base, and if you have a fairly solid patent application on critical parts of your software.

There's a third reason big companies should prefer buying to building: that if they built their own, they'd screw it up. But few big companies are smart enough yet to admit this to themselves. It's usually the acquirer's engineers who are asked how hard it would be for the company to build their own, and they overestimate their abilities. [4] A patent seems to change the balance. It gives the acquirer an excuse to admit they couldn't copy what you're doing. It may also help them to grasp what's special about your technology.

Frankly, it surprises me how small a role patents play in the software business. It's kind of ironic, considering all the dire things experts say about software patents stifling innovation, but when one looks closely at the software business, the most striking thing is how little patents seem to matter.

In other fields, companies regularly sue competitors for patent infringement. For example, the airport baggage scanning business was for many years a cozy duopoly shared between two companies, InVision and L-3. In 2002 a startup called Reveal appeared, with new technology that let them build scanners a third the size. They were sued for patent infringement before they'd even released a product.

You rarely hear that kind of story in our world. The one example I've found is, embarrassingly enough, Yahoo, which filed a patent suit against a gaming startup called Xfire in 2005. Xfire doesn't seem to be a very big deal, and it's hard to say why Yahoo felt threatened. Xfire's VP of engineering had worked at Yahoo on similar stuff-- in fact, he was listed as an inventor on the patent Yahoo sued over-- so perhaps there was something personal about it. My guess is that someone at Yahoo goofed. At any rate they didn't pursue the suit very vigorously.

Why do patents play so small a role in software? I can think of three possible reasons.

One is that software is so complicated that patents by themselves are not worth very much. I may be maligning other fields here, but it seems that in most types of engineering you can hand the details of some new technique to a group of medium-high quality people and get the desired result. For example, if someone develops a new process for smelting ore that gets a better yield, and you assemble a team of qualified experts and tell them about it, they'll be able to get the same yield. This doesn't seem to work in software. Software is so subtle and unpredictable that "qualified experts" don't get you very far.


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