Software patents are bad for startups, need to go

Usmaan Hasan

Last week, the founders of Pied Piper from the acclaimed HBO comedy “Silicon Valley,” crossed paths with “patent troll.” Trolls buy rights to an overly broad patent for pennies, then make a living by suing start-ups and settling for thousands of dollars. These lawsuits have become a depraved legacy of the Lone Star state, 40 percent of patent lawsuits in the last decade have been filed in the Eastern District of Texas. The premise that  allows these trolls to exist, patents for software, are unnecessary for successful technology companies and detract from the incentive to innovate. It is necessary to abolish software patents to create a better technology industry.

Patents are a cornerstone of tech behemoths. The ongoing Smartphone Patent Wars between Apple, Google, Microsoft, and Samsung has incurred over $20 billion worth of litigation. Yet even though the industry places a premium on intellectual property (IP), the fundamental nature of the United States patent system is unfit to handle software patents.

Patents have historically been granted to protect “things,” like the drugs developed by pharmaceutical companies, the words written by an author, or the mechanism used to lock a door. These physical patents are explicitly constructed because they describe exact mechanical functions, like a special hinge that keeps a door propped open.

This is compared to the more abstruse software patents that describe concepts, such as “moving data on a network,” which can encompass the entire internet or just sending text between phones. Among the plethora of patent types software patents are so ill-defined they become liabilities, impossible to defend and likely to be litigated. Rather than establishing a unique framework for software, the US Patent and Trademark Office has begun frivolously granting vague software patents, estimated to be around 40,000 new patents a year.  

The abundance of software patents have trickled into daily life – the desktop computer involves 592,345 patents. The result is “patent thickets,” a veritable forest of patents that startups developing must navigate lest they get sued by Apple. The vagueness of software patents have allowed companies to sue individuals for trivialities like using a copier and has cost defendants over $83 billion per year. Software patents have already put startups in India in a tight spot, and a failure to reduce software patents poses to put the US in the same situation

On face value, burning down the system doesn’t seem a necessary or appealing course of action. Procedural reforms have been made, shifting the burden from defendants to those seeking damages. However, the current patent system has only served to facilitate meaningless litigation, changing the field from protecting IP to purchasing IP. Moreover, the premise of patents is incompatible with software. Patents should protect how an idea is executed, not the idea itself. A screen that scrolls should not be patented, but unique code which implements the concept deserves protection.

To create a leaner tech industry, software patents must be allowed to lapse, the Patent and Trademark Office must reform its paradigm for pending software patents, and legislative reform demanding more thorough claims of patent infringement must be made. Without these changes those who abuse patents will continue to stifle start-ups like Pied Piper.


Hasan is a Finance and IRG sophomore from Plano. Follow him on Twitter @UzzieHasan.