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Even worse than the spectacular abuses might be the overall decrease in efficiency that would accompany increased secrecy. As anyone who has dealt with organizations that operate on a "need to know" basis can attest, dividing information up into little cells is terribly inefficient. The flaw in the "need to know" principle is that you don't know who needs to know something. An idea from one area might spark a great discovery in another. But the discoverer doesn't know he needs to know it.

If secrecy were the only protection for ideas, companies wouldn't just have to be secretive with other companies; they'd have to be secretive internally. This would encourage what is already the worst trait of big companies.

I'm not saying secrecy would be worse than patents, just that we couldn't discard patents for free. Businesses would become more secretive to compensate, and in some fields this might get ugly. Nor am I defending the current patent system. There is clearly a lot that's broken about it. But the breakage seems to affect software less than most other fields.

In the software business I know from experience whether patents encourage or discourage innovation, and the answer is the type that people who like to argue about public policy least like to hear: they don't affect innovation much, one way or the other. Most innovation in the software business happens in startups, and startups should simply ignore other companies' patents. At least, that's what we advise, and we bet money on that advice.

The only real role of patents, for most startups, is as an element of the mating dance with acquirers. There patents do help a little. And so they do encourage innovation indirectly, in that they give more power to startups, which is where, pound for pound, the most innovation happens. But even in the mating dance, patents are of secondary importance. It matters more to make something great and get a lot of users.

Notes

[1] You have to be careful here, because a great discovery often seems obvious in retrospect. One-click ordering, however, is not such a discovery.

[2] "Turn the other cheek" skirts the issue; the critical question is not how to deal with slaps, but sword thrusts.

[3] Applying for a patent is now very slow, but it might actually be bad if that got fixed. At the moment the time it takes to get a patent is conveniently just longer than the time it takes a startup to succeed or fail.

[4] Instead of the canonical "could you build this?" maybe the corp dev guys should be asking "will you build this?" or even "why haven't you already built this?"

[5] Design ability is so hard to measure that you can't even trust the design world's internal standards. You can't assume that someone with a degree in design is any good at design, or that an eminent designer is any better than his peers. If that worked, any company could build products as good as Apple's just by hiring sufficiently qualified designers.

[6] If anyone wanted to try, we'd be interested to hear from them. I suspect it's one of those things that's not as hard as everyone assumes.

[7] Patent trolls can't even claim, like speculators, that they "create" liquidity.

[8] If big companies don't want to wait for the government to take action, there is a way to fight back themselves. For a long time I thought there wasn't, because there was nothing to grab onto. But there is one resource patent trolls need: lawyers. Big technology companies between them generate a lot of legal business. If they agreed among themselves never to do business with any firm employing anyone who had worked for a patent troll, either as an employee or as outside counsel, they could probably starve the trolls of the lawyers they need.

Thanks to Dan Bloomberg, Paul Buchheit, Sarah Harlin, Jessica Livingston, and Peter Norvig for reading drafts of this, to Joel Lehrer and Peter Eng for answering my questions about patents, and to Ankur Pansari for inviting me to speak.


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