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The Patent Pledge

paulgraham.com

618 pointsanateus194 comments

It's not immediately clear to me whether this solves any part of the current problem. But on reflection, I believe I understand the motivation here.

Big companies that use patents as a revenue stream (MSFT, IBM, etc.) typically bide their time and bring a patent lawsuit once a new company is established and there is blood to drain. It's the threat of such a lawsuit in the future that can negatively impact investment in a startup, as the right collection of patents could conceivably capture much of the economic surplus of a new venture. Alternatively, a big company might use the threat of a patent lawsuit, now or in the future, to push a young company to agree to an early acquisition.

The pledge doesn't seem to have much impact on these scenarios, even if a big company were to follow it rigorously.

Most of us, I believe, would prefer to see companies make a stronger commitment: "No first use of software patents" [period]. Google hasn't made this pledge, but to the best of my knowledge, they've acted in this way so far. It does seem in line with "don't be evil."

That said, I think I see what PG is going for here. He wants companies to make a pledge that, at a minimum, allows a new product or service to be tested on the market. That way, if it gathers traction, it will attract investment despite the threat of patents, and the new company will be able to mount a reasonable defense.

Perhaps more importantly, though, by allowing the product to succeed first, even in a modest way, it makes the offensive use of patents worse PR for the big company. Killing a successful product with patents is no longer an abstract issue. It takes away from customers and the market something very real.

> Most of us, I believe, would prefer to see companies make a stronger commitment: "No first use of software patents" [period].

I don't think PG agrees with this. He seems to be much less anti-patent than the general HN (commenting) community.

'Most of us, I believe, would prefer to see companies make a stronger commitment: "No first use of software patents" [period].'

Good idea, but it can't work. If the PTO is willing to grant a patent on a software idea, someone is going to get the patent. If Google stands down, some troll will get it instead, to the detriment of society.

I believe "use" means "bring suit or threatening same", here, not "apply for a patent".

OK, if so, who is going to pay the $10k+ in costs to get each of these patents? Whoever pays to get a patent and not enforce it does society a service, but bears the cost themselves.

They also do it defensively, to protect against someone else getting that patent and using it against them.

The idea is own the patent for defensive purposes, not aggressive. "Patent pacifism," if you will.

This line is repeated everywhere now, and it is hard to swallow. A deterrent is only useful if you employ it from time to time to demonstrate its power.

If you have offensive capacity you will be bound to use it.

Guns don't kill people, People kill people. Sure, but guns make it much easier, and by design, have the capacity for landing in the wrong hands.

A deterrent is only useful if you employ it from time to time to demonstrate its power.

Are you suggesting people who own guns should kill someone from time to time so nobody will fuck with them?

Are you suggesting that this is not how guns usually get used?

I'll suggest that.

Over 50 million households in the US own 200 million or more guns, collectively. If these guns were usually used this way, the US would be depopulated by gun violence in a decade or two.

Thank you, I wasn't gonna bother

I don't understand how one would defend their patented innovation without suing someone else? Or are you suggesting that the patent only be used as a counter-suit after being sued for infringement of a different patent?

I mean, the whole point of a patent is to be able to sue people who are competing with you. How can that ever be defensive?

Unlike trademarks, you can hold a patent without having to defend it. You are not legally required to use it. So the choice to use it is yours. The logic behind defensive patents is similar to creating nuclear weapons as a deterrent and the theory of mutually assured destruction.

Except the superpowers with all the nukes routinely fling them at each other. Where is the deterrence?

If IBM is not deterred by Microsoft's patents, why would they be deterred by mine?

I think you're mistaken about superpowers flinging nukes at each other. Only two nuclear weapons have ever been used in war, and that was 65 years ago.

It was analogy / metaphor. All the superpowers == all the big companies (Google, Apple, Samsung, etc) routinely fling nukes == lots of patent litigation.

Good call. That interpretation seems obvious in retrospect.

If you patent an invention, no one else can. Your patent prevents other people from patenting the thing that you depend on.

If your next question is that the existence of your invention would invalidate their patent due to prior art, that would take costly legal maneuvering to establish. Is there a shortcut around that legal maneuvering? Yes, patent your invention first.

If you want to start a movement, you can't aim too high initially, or you just stall. The patent pledge in its current form is at least fairly easy to swallow. If it sticks, it will have the effect of making patent suits against competitors seem more dubious, which would in turn prepare people for more exacting versions.

How far ultimately would you want to push it? I honestly don't know yet. Patents may have some utility. It's a very complicated question. I've read a lot about the history of technology, and I can't say for sure whether things would have gone better or worse without patents. The topic seems to be one of those where on average the strength of people's opinions is inversely proportional to how much they've studied the problem.

Certainly, biting off too much at once isn't workable. But then again, biting off too little can stall a movement too, as it can fail to inspire as much passionate support as a somewhat larger bite. Starting a movement is a hard problem -- a significantly harder one than making money. I appreciate your effort to address the problem, regardless of which way it goes.

Let me address your last sentence, though. Your statement presupposes a utilitarian moral system. That is, it assumes that a person's position is completely determined by which policy will result in the greatest growth in technology.

I've studied the history of patents as well, and I share your practical uncertainly over which policy inspires more growth. Patents may, in fact, grow certain types of technology faster while inhibiting growth in other areas. Since we need to weigh the harm caused by the lack of things that never existed against the benefits brought by things that do, it's probably impossible to do a quantitative analysis that is fair to both sides.

However, I and many others oppose patents on deontological grounds. That is, even if the existence of a patent monopoly produces some technological benefits as compared to a non-monopolistic system, we would choose freedom from monopoly.

John Carmack may have stated the essence of this position better than anyone since Jefferson [1]:

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." -- John Carmack

[1] "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." -- Thomas Jefferson

What is a good example of something that would have turned out worse if there hadn't been software patents? (I know you've argued before that software patents aren't fundamentally different than patents on anything else, but to a lot of people software patents have more obviously negative consequences).

The most famous example is probably Watt's steam engine. Bolton & Watt had high development costs and could not have gotten funding without their patent.

But once established they definitely used patents against smaller competitors. So it is hard to say for sure even in this case whether patents were a net win. They probably were though. The patent probably caused modern separate-condenser steam engines to happen at least a few years earlier.

(I recommend the story of Bolton & Watt to present day founders. It is remarkable how little has changed.)

The poster above was asking specifically about software patents.

Oops. I don't know of anything that would have turned out for the worse without software patents. But I only know about a subset of uses of software. There might be cases in pharmaceuticals or manufacturing where patents helped protect individual inventors against big companies.

It seems pretty obvious that if instead of patent system we had a mandatory obligation to publish full specs (schematics and source code) for all marketed products the invention rate will grow exponentially. The development costs will be cut down because of possibility to incrementally improve on existing products.

Strange. That directly contradicts Against Intellectual Monopoly[1], which claims patents did more harm than good in this very case.

One reason is independent discovery: most innovations tend to be discovered independently and nearly simultaneously. Like, when "science is ready", innovations just pop out of several people's mind relatively quickly. (See also Eben Moglen's folk theory of the internet and innovation: "wrap the internet around a planet, spin the planet, and ideas flow out of the network".)

If we accept that, the only thing that could have significantly slowed the development of the modern separate-condenser steam engine down is money. Like, no single one investor is willing to risk making the first step, by fear of being eaten by copycats. If this is so, then we have a tragedy of the commons.

Risk aversion in this case is indeed a problem. I think it is mitigated however by (i) the first mover advantage, and (ii) variations of risk-aversion among individuals (combined with independent discovery, you get a winner-takes-all scenario).

Ah, before I forget: adopting an individualist point of view tend to favour patents: an inventor is entitled to reward (forgetting other's entitlement for freedom of invention). If I didn't have that patent, then I wouldn't have done this much good (forgetting that others may have done it otherwise). I know you didn't make this error, —Cf your §2—, but others do —for instance by taking your §1 out of context.)

[1]: http://www.dklevine.com/general/intellectual/against.htm

Here's a slightly different take on Bolton & Watt http://mises.org/daily/3280

I think the key takeaway is that the patent was retroactively extended; so the idea was already created. If the extension was necessary for funding and development, then a case can be made for granting temporary monopolies for anything regardless of the inventor (the idea already exists, so we should find the best implementer) - I think most would be against this idea.

Well, it stinks when you try to do something good and then catch a bunch of crap from people doing nothing, for not doing enough. So I don't want to do that.

But here's the thing - while this is good, the Intellectual Ventures of the world are actually wining and dining congressional aides and maxing donations. The financial industry got that patent carve-out a couple months ago that only applied to their industry. Until tech people get into the game, full-court press in DC and get actual job creators and moneymen in front of congressmen telling them that this stuff destroys jobs, they're not going to be represented.

You're not obligated to go on a personal crusade on this, and it sounds like a big hellish pain in the ass that would be a net loss for you personally and for YC by entangling you in politics. But until someone does, people in favor of patent reform are going to be unilaterally disarmed.

Maybe some sort of industry lobbying group for small tech biz that's not beholden to the big corps would be effective. A small amount kicked in by some of the major angels/VCs, and a limited lobbying mission of "stuff that everyone can agree to" which would certainly include abusive patent use.

That is the precise point of this initiative. Since lobbying for reform is timely, not going to make immediate change, and ultimately becomes a war of finances, the goal is to bring consumer awareness to the issue and create an environment where being on the pledge list is a big benefit to companies. It also puts those companies together on a team for this issue, which may lead to other "rules" that help force the change. Since it's not targeting patent trolls with actual products, you may even end up in a situation where large companies on the list decide that the only people they litigate against are those who are inhibiting innovation from others. For example, Bump won't license its patent to any companies not on the list. Basically, stop blocking innovation, or be blocked.

Yeah, since posting I realized that a list of pledgees is exactly the kind of list you want if you're going to form an industry association based around this issue. So good on pg in general.

Paul, how do we join? I'd like to support this.

i cant see a place to take the pledge so i added one on my own site http://littlebiggy.org/2005087. its still in alpha but it oughta work since you need to use your real name.

Part of the problem is that the negative impact of patent trolling doesn't yet register with the general public as an issue comparable to the frivolous med mal suits that necessitated tort reform. We need Michael Moore to produce a documentary on the harms caused by patent trolling (and bad patents), so that the full extent of the problem is presented to a wider audience.

> The topic seems to be one of those where on average the strength of people's opinions is inversely proportional to how much they've studied the problem.

For me, at least, the experience has been the reverse: I used to think the patent system was basically sound with only a few problems, but the more I've read on the history of patents, the more I've realised how broken it is, and has been for a long time.

For example, in the 18th century James Watt used his patent to stymie development of high-pressure steam engines.

In the 19th century, there was costly patent litigation over barbed wire, which benefitted the economy not one jot. Nor did the sewing machine patent thicket and ensuing litigation benefit the consumer.

A patent is supposed to teach people how to make an invention. But in the 20th century, Frank Whittle wrote his patent application for the turbojet several years before he had actually made one. His patent couldn't teach people how to make a turbojet, because at the time of writing he didn't know himself! -- it took Whittle several years of hard engineering before he built a working jet engine.

A recent study found that patents per capita was the most important factor in determining the gap between the haves and have nots in a nation.

http://thinkprogress.org/yglesias/2011/08/31/309483/patents-...

What's poorly thought out about this pledge is that a shop of far less than 25 people could easily clones of web and mobile apps at scale.

I think it's implied that the companies making this pledge will tend to be the huge corporations with massive brand recognition and existing user bases that ought to be able to dominate the market unless the 25 person shop has found a way of significantly improving the product offering. In which case most of us would prefer to see acquisitions over litigation.

> Big companies that use patents as a revenue stream (MSFT, IBM, etc.) typically bide their time and bring a patent lawsuit once a new company is established and there is blood to drain.

Doesn't the legal doctrine of laches prevent this?

I disagree that this will help, because the established companies the pledge would apply to are a secondary problem and mostly seem to fight each other (has Microsoft asserted patents against a startup? has IBM? has AT&T? when they asserted patents it was against multi-million dollar businesses!). The primary problem is patent trolls (see e.g. lodsys / intellectual ventures) for whom this pledge could be considered self-harm.

I will quote myself from [ http://news.ycombinator.com/item?id=2855835 ] here for another solution, one that actually can _easily_ go through government (except for the intense lobbying against it by whoever enjoys the current patent regime); you can read there for some discussion if it is interesting. Quoth myself (with minor editing):

Intellectual "Property Tax". Have everyone declare the value of their intellectual "property" (patents, copyrights, trademarks) - each and every item, for that year, on their tax return, and have them pay 1% of the value as "IP tax", per year.

Clarification: you can set a different value every year. The value may drop to zero because a competitor's patent solves the problem better; or it may go up because it becomes essential to something that becomes commonplace.

That amount is what one pays for a compulsory license or if successfully sued, and up to 3 times that for willful infringement, per year -- and no more. (But of course, a patent owner can always negotiate a lower payment, as is done with music recordings that have compulsory license agreements)

All of a sudden, everyone has an incentive to state a reasonable value for their patent. Copyright catalogs that are not being published (old music recordings, old books, old movies) would be assigned 0 value by copyright holder, to avoid tax - which means anyone can freely make a copy. If they believe -- at the end of the year -- that someone is making a profit at their expense, they can set the value as high as they want at the end of that year, pay the tax, and sue the profiteer.

Simple, elegant, and coffer filling.

edit: put missing link

edit: added clarification about setting value each year anew.

Everyone will game the IP tax by valuing it at pennies -- after all, they may not directly be using it may not have a fair market value before they take someone to court.

As a real-life example of people gaming these types of taxes, people buy expensive (>100K USD) cars in europe directly (i.e. taking delivery in stuttgart) to save on the sales tax: driving it around for a bit ensures that the car is technically "used" when brought back here, circumventing new car taxes.

I haven't thought through OP's proposal, but your objection is covered - by valuing a patent at pennies, a company would cause compulsory licenses/willful infringment penalties to also be worth pennies.

No but the taxes would have to be paid only after a successful patent case. The point is that the patent has no real market price until the first successful willful infringement penalty. Until that point, the price is arbitrary.

Until _before_ a patent case. The taxes are what gives you the ability to sue (and a limit to the damage you can be awarded), and there is no guarantee you will win your case of that your patent will not be invalidated.

Again, you have to pay the tax _before_ you can sue, and then you can only sue for the value reflected by the tax for that year, no more (and you are still subject to invalidation, etc).

I think that the idea is that if you declare the taxable value, then later try to sue someone for a much higher value, then you've now committed fraud against the IRS.

Of course, the easy work around to this is the claim that it's value increased suddenly when the patent became more useful; you start paying more tax when you start suing others.

Considering that low maintenance costs don't prevent domain squatting, I'm not sure this would be an effective tactic to prevent lots of silly patents.

We can't get patent reform through Congress, so let's try to get a new tax through Congress? DOA.

You need a carrot for Congress. Right now, a patent reform (of the kind HN would generally like) will:

a) reduce government intake in the form of patent registration and maintenance fees b) get all the lobbyists employed by current patent holders (who spend billions of dollars on those patents) working against you.

Why on earth would congress do something like that? So that 0.05% of the population that actually has any idea how bad it is would rejoice? (If your answer is "to improve american competitiveness" or something like that -- well, you have no idea how congress works)

However, if you can get a new spending source, you just have the lobbyist problem to take care of.

Improves innovation which will eventually lead to more tax dollars. Although it would be a stretch to get them to take a long term view, would also probably have lawyers lobby against it.

To clarify: they can't adjust the value retroactively, right? If you find out someone is profiting from your patent in 2011 which you valued at zero the beginning of that year, you have to wait until 2012 to re-value (and potentially sue them), correct?

To clarify: the declared value puts a _maximum_ on awarded damages, but does not make it in any way automatic (even if the product is found infringing).

My proposal is that it is set retroactively one year back: when you file your 2011 taxes (on April 2012 at the latest), you would assign a value for it for 2011, and pay it at that point.

If you sue (or even threat to sue) someone in 2011 before paying the tax, that is an admission of tax liability - if you declare less at the end of the year, that's grounds for the IRS to audit you and assume your highest estimate during the year (as shown in the threat to sue) sets your tax, and anything else is automatic assumption of tax evasion.

A future-looking only assessment is also possible; but in that case, you have to be able to set the value (and pay the tax) on a monthly basis -- otherwise, it calls for anyone who is willfully infringing to wait until 1-jan, ask for the IP value, and if it is less than they expected to pay, have a year of "free" use.

My proposal is an attempt to sort-of balance the existing state of affairs -- if at the end of the year, you didn't manage to license it to anyone, you shouldn't be taxed for what you thought it is worth.

I don't get it then. If my company holds a huge portfolio of patents, and we sue for $X damages on some subset of them in a given year, we will simply value those patents at $X and the rest at zero. Then we recover $X in damages, and pay 1% of X in taxes.

In other words, doesn't this just reduce to a 1% tax on patent damages?

(Even if we think we'll only recover on average p% of our claims, we still only pay 1% of X in taxes to get p% of X in damages. Assuming p% is closer to 50% than 1%, not much changes.)

No, it does not reduce to 1%. At worst, it will reduce to (1/p)% (with p<1, you assume p=~0.5), but probably much, much more: All of these processes realistically take months to years (have you noticed how long SCO vs. Novell was going on?) - if you "deactivate" a subset while you're still suing, that reduces your damages. So, you'll have to keep it active, say three years - which with p=0.5 makes it a 6% tax on damages.

However, it does chill the chilling effect - right now, e.g. Microsoft has ~20,000 patents, and they can sue anyone for anything. This way, they will actively have to choose strategically what they want to enforce.

Finally, and I think I haven't made this clear enough, I don't think my proposal is a GOOD patent system in any way. It is bad. But it is not as bad as the existing system, and (I suspect) it has a much better chance of passing than a complete reform.

Furthermore, it stops some of the (currently legal) tax loops that involve passing patents among shell corporations.

The basic idea is to align value with cost. Any system in which the value of the patent is potentially infinite (as in the current system) is materially broken, and it is just a matter of time until someone finds a way to game it (non practicing patent trolls). Any sane system must have cost (of patent, property, copyright, etc) rise at least linearly with value.

Fine, so it's a (n/p) times 1% tax, where p is the average chance of victory and n is the average number of years in court for each suit. This doesn't seem to change the structure of the incentives at all; it's just a tax on patent infringement damages.

I find the non-retroactive possibility much more interesting.

I don't disagree a non-retroactive possibility might be better; I just haven't been able to reach a conclusion about it.

And, it is more than just a tax on patent infringement damages - because you have to pay the tax upfront, which makes a big difference in cashflow.

eolas's $600M verdict against Microsoft, and i4i's $400M verdict would both require posting $6M / $4M per year respectively in never-to-be-recouped taxes, which is a huge sum for the companies in question, and would probably have made them not sue.

Furthermore, it involves the IRS in valuations, which is a good thing (because it is much harder to mess with the IRS) - manipulation of the value of a patent would have to be explained, and not arbitrary to avoid taxes.

Anyway, we could all dream - it is the lobbyists that write the laws, and the patent holders have thousands of them in DC.

> Any system in which the value of the patent is potentially infinite (as in the current system) is materially broken, and it is just a matter of time until someone finds a way to game it (non practicing patent trolls).

Incidently, patent trolls are not a new phenomenon: Elias Howe was on in the 19th century. http://volokh.com/archives/archive_2009_04_26-2009_05_02.sht...

The biggest problem with the patent system is it discourages people from using patented ideas - the more patented ideas you use in your product (even if you independently discover them), the more you pay.

A good patent system would have the following properties: * Investment and risk taking in R&D and sharing the results is rewarded above the costs of that R&D, so there is no disincentive to share with competitors. * There is no disincentive to using and building on ideas shared by others.

I think the best system is a 'tax'-like system - alongside the existing patent system, businesses can elect to pay 10% of their revenues to a pool for immunity from all patents. Businesses using / reselling patented manufactured products are still liable even if the manufacturer pays the 10%, unless they also pay the 10%. Patent filers tell the pool the actual costs of R&D (and may be audited to prove it). The pool is distributed based to patent filers based on R&D costs (and maybe a per-industry factor for risk) - it might be better to somehow collect some rough metric of value of the each patent to their business from patent users, although there are risks of the system being gamed then.

This system would achieve the desired properties at 10% of all industry-wide research being spent on R&D - it would favour not disclosing R&D worth more than 10%, and if less than 10% was spent, it would be stacked in favour of companies doing R&D.

The problems people note are solvd if you issue a patent free for a short time, like 3 years, and then auction a much smaller number of extensions to that term. This creates a pricing maximum for years 4 to whenever.

PG, was this pledge created in response to litigation you have experienced with YC companies?

There doesn't seem to be much evidence companies with fewer than 25 employees are getting sued unless there's something left unspoken here.

I think it would be more constructive to begin the discussion of what patent reform should resemble so that companies and individuals can show support for it. Some kind of software patent working group that can put forward a vision that everyone can get behind. If enough people and companies come to support a way of thinking then it will slowly affect current behavior and ultimately shape the legal framework of the future.

Even if it was a problem that companies smaller than 25 were being sued for patent infringement, I'm not sure the legal litmus test should be how many employees are at the company.

IIRC none have actually been sued, but one has been sent a letter saying they're violating a competitor's patent. What made me start thinking about this idea was a combination of that letter, this story:

http://k9ventures.com/blog/2011/04/27/modista/

and the fear that YC applicants working on education software have of the notoriously litigious Blackboard.

Interesting, it looks like Blackboard has their own interpretation of a "patent pledge," but it only covers open-source and non-commercial software.

http://www.blackboard.com/About-Bb/Patents/Patent-Pledge.asp...

They did this because of the outrage from the Moodle community over some of these patents.

There was talk of a formal attempt to get some of them overturned but this pledge took a lot of the heat out of the outrage.

Here's a pledge, fuck software patents. I used blackboard in multiple schools and it was terrible, so screw anyone who tries to impede those who improve upon that system.

Given that PG cannot think of "anything that would have turned out for the worse without software patents", what-say-you we hold out for what is really needed, no software patents. That is, let's wait until this problem gets worse, get even more outraged, and effect our own change by getting businesses for whom we work to stop engaging in these vaine battles

>I think it would be more constructive to begin the discussion of what patent reform should resemble so that companies and individuals can show support for it.

Here's a (possibly already proposed) idea: Why not have much shorter terms for software patents? With software advancing at an ever increasing rate we could reward developers who hold patents by granting them exclusive rights for a year--an eternity in today's world.

Perhaps this timeframe would make patents difficult to enforce (which has its pros and cons) and it doesn't fix the problem of frivolous patents, but a year-long term would (in principle) protect your "invention" long enough for you to get a head start on the market.

At UIUC some of my friends did a startup related to memory architectures. IBM pretty quickly shut them down with threats of patent suits. So I know it happens, not sure how common it is though.

AlexBlox asks in an earlier comment: "does publicly stating this pledge bust any opportunity to double back (i.e. it is more legally binding than just a pledge?)"

A court might well hold a company to such a pledge, on a theory of "equitable estoppel." This type of defense to an infringement charge is always highly fact-specific; here's an example of a case in which the defense succeeded:

A patent owner accused a manufacturer of eyeglass frames---which it had previously sued for infringement---of infringing other patents. After back-and-forth correspondence---in which the manufacturer denied infringement---the patent owner went silent for three years. In the meantime, the eyeglass manufacturer expanded its marketing efforts for the products in question.

The trial court held that the manufacturer was not liable for infringement, on grounds that the patent owner's actions, in view of all the circumstances, had misled the manufacturer into thinking it would not be sued. The appeals court found no error in this holding [1]; it explained that:

"In the context of patent infringement, the three elements of equitable estoppel that must be established are:

(1) the patentee, through misleading conduct, led the alleged infringer to reasonably believe that the patentee did not intend to enforce its patent against the infringer;

(2) the alleged infringer relied on that conduct; and

(3) due to its reliance, the alleged infringer would be materially prejudiced if the patentee were permitted to proceed with its charge of infringement."

[1] Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 605 F. 3d 1305 (Fed. Cir. 2010) (affirming summary judgment in favor of accused infringer), http://www.cafc.uscourts.gov/images/stories/opinions-orders/...

In that case, what's stopping large company X from forming a shell company of one employee which performs services for X using patents held by company Y which has made such a (potentially legally-binding) pledge?

Here's another proposal that doesn't rest on social pressure, the effectiveness of which I fear Paul overestimates.

Start a non-profit coalition with the following rules:

(1) All patent disputes between members will be resolved by binding arbitration. The arbiters are a panel of domain experts (not lawyers!). There is no presumption that an issued patent is valid.

(2) If a member of the coalition is sued by a non-member, the other members of the coalition make their entire portfolios available for a defensive countersuit. When a member's patent is used to defend another member, the former is compensated by the latter on terms set by arbitration.

(3) There is no restriction on using one's own patents to sue non-members.

It would also be stated policy, at least in the areas of software and business model patents, that the arbiters would be directed to apply a very high standard of obviousness, so that most issued patents would be of little use in an arbitrated dispute.

Could such a thing work? No voluntary system can address the patent troll problem, as trolls have nothing to gain by joining it. But for practicing entities, it seems to me that membership in such a coalition could be beneficial, by reducing the likely number and expense of patent disputes.

It is my understanding that this was pretty much exactly the pitch for Intellectual Ventures, and now they have sunk to aiding and abetting trolls.

Is IV a non-profit? I think this idea might actually work if you dissuade the profit motive from corrupting the initiative.

One line from this essay has me a little worried...

"A clumsy parasite may occasionally kill the host, but that's not its goal"

This came up in a previous discussion on HN where I made essentially the same point. As someone pointed out in response, a parasite can get away with killing off the host as long as there's somewhere else to go next. In fact, a parasite could wipe out an entire species as long as it can make the jump to something more resilient.

it was just a short aside, but here's a link the the thread...

http://news.ycombinator.com/item?id=2760148

> Please join them!

Paul, there is a major oversight here. The site http://thepatentpledge.org/ doesn't even have a contact form. Also, you may want to make the links nofollow.

Yeah I noticed the same thing. Should the companies email pg directly?

Maybe they should put an announcement on their own websites, and pg will update the site accordingly?

Patent trolling big companies is just as unethical as trolling small ones.

PG: Red Hat, a multibillion dollar business, already has a working patent pledge - they won't use patents except defensively against people who attack them first. Copy that and use it.

I disagree. Patent trolls often just aim for a comparatively meager payout for licensing from their victims, who are usually too small to be able to afford the much more expensive option of taking it to court (and perhaps winning). Therefore a loophole in justice.

This is exactly right. Tragically, it is cheaper to settle a baseless lawsuit than to win it. It makes business sense to give trolls money.

Not necessarily a meager payout. They don't want to kill the host (as per PG's essay), but non-practicing entities are much more likely to swing for the fences - asking for, litigating toward, and receiving large damage awards. They have less to lose.

I understand that some victims are weaker than others. However that doesn't change the ethics of the matter: stealing from a poor old lady is as ethically bad as stealing from a rich kid. The impact may be greater, but the ethics are just as dubious.

Consider ID discovering a mathematical transform. If Creative signed up to PG's meaningless patent promise, they'd still be asking ID Software for protection money as they have more than 25 employees.

My personal pledge is that as a programmer I refuse to work for any company that goes on the attack with software patents, this obviously includes Apple and Microsoft. I also refuse to participate if asked by my company to help create a patent, I am willing to be fired over this.

Since good programmers are a scarce resource if enough of us took this pledge it could really start having an effect.

When I was writing software patents for a living, programmers hated talking to me. They considered it a total waste of time at best. That's part of the reason I decided to switch sides and do a startup instead ;)

The problem with that worldview, is that Patents play a number of very important defensive and value creating roles in a small company, that is not related, whatsoever, to their use in an offensive (in both senses of the word) manner.

See: http://paulgraham.com/softwarepatents.html

In particular:

"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."

That's the type of pragmatic individual reasoning that collectively just perpetuates and reinforces the current system. If we can't rely on government then the only way to change it is by being unreasonable.

The thing about being a leader, or a bellwether, is that you need to walk outside the mainstream, be just a little bit crazier than your colleagues, but not so crazy our out of the mainstream that you leave everyone behind.

PG's position is clearly not in the mainstream of the business world (though, one might argue that, if anything, he's more conservative than his hacker audience) - but he's close enough to their interests that he may encourage followers. Or not. That's always the risk of being a leader - you may step out, and people may not follow.

He does speak to their interests which is, "If you want to hire great developers, you should align your corporate ethos with the best and brightest that you want to attract" - and, in general, large companies virtually never, ever, sue _small_ companies for _software_ patents - so they have little to risk.

> I also refuse to participate if asked by my company to help create a patent

What if it covers an actual invention?

What if it is meant to be used defensively, i.e. not for the litigation, but rather to discourage other companies from suing based on their patents?

Software inventions, no matter how original, should never be patented. Where would we be if someone had patented web-crawling or unit testing or hyperlinks or MVC? Plenty of people are getting rich, tons of innovation is going on. What are software patents supposed to be good for?

> Software inventions, no matter how original, should never be patented

Why not?

The whole idea of patents is to prevent trivial duplication of results that were achieved through considerable research expense. I don't really see much difference between spending a lot of time on getting a mechanical design right or developing and testing a drug or researching a sophisticated algorithm.

PG suggests that this won't stop the trolls but it might deter more traditional companies.

Does anyone have stats on who is doing the most damage to early companies? Given the press, it's easy to think that trolls are the biggest offenders by an order of magnitude. Is there data that suggests otherwise?

The two types of attacks are so different that it's hard to compare them. Patent trolls attack more victims, but all they want is money. Attacks by competitors are much rarer, but more damaging when they do happen.

I'd be surprised if the trolls (except Lodsys) are causing a lot of grief for companies under 25 employees. They seem to be more interested in a smaller number of bigger scores.

Indirectly, this pledge my also help to slow down the trolls. Trolls buy up patents in order to sue or resell. Startups have no money to pay up, so the only option is to resell. But, if a potential acquirer has pledged not to use patents against small companies, buying them off from trolls wouldn't make for a good public image. As a result, trolls won't press on the patent holders, at least until they are acquired by a company that is capable of paying the bill.

... thereby making it cheaper for trolls acquiring patents, like Intellectual Ventures, as there is less market for the patents -- but not slowing them down.

There's such a huge variance in the value startups create that it probably doesn't matter.

It only takes one obscure archival services contractor to sue Google out of existence in 1999.

I was thinking the same. It'd be hard to find stats as alot of the litigation is under a 'no speak about it' type of clause.

But operating a single-founder startup myself, I am alot more worried about the patent trolls than big companies right now.

Because it's one line and because its implications are that important:

For quantities you can count (windows, money, people...), the word is "fewer." For quantities you can't, the word is "less"

The pledge should read: No first use of software patents against companies with fewer than 25 people.

No.

Your formulation is not incorrect, but pg's is correct as it stands. The word "less" has been used in a range of English dialects for both countable and measurable things, for more than a thousand years. See e.g. http://itre.cis.upenn.edu/~myl/languagelog/archives/003775.h... for some excellent discussion on this issue, and actual corpus data to back it up.

I have a PG question for PG: what problem does this solve?

I see 2 problems currently.

1. Microsoft suing Android makers, and other similar examples, where large companies burn billions of dollars of our economy over something pointless.

2. Patent trolls like Intellectual Ventures and their shell companies suing startups.

How does this solve either of these problems? Who really needs this?

Yeah, I'm not really afraid of Microsoft -- especially if I don't ship a product based on Linux or Android. And patent trolls aren't going to agree to this pledge.

Patent trolls worry me the most. I'd like to see a pledge around having the tech community pool together against patent trolls. Not sure how you'd do it, but I'd like to see that.

you should be worried about Microsoft: see the chilling effect case of virtualdub, a Windows-only software.

That doesn't scare me much. They were trying to reverse-engineer a MS file format. If I'm doing things like trying to reverse engineer Silverlight DRM or get around PatchGuard, or find a way to circumvent some limitation in a Windows SKU (like installing Media Center on Starter Edition) sure I'd be worried. But if I'm just building product that infringes a patent they have, I'm not worried.

There was a case of a startup shoe sales site with a really elegant interface for selecting the exact type of shoe you wanted. Basically, it allowed you to see many very similar styles on one page to be able to compare similar offerings from different labels. I wish I could remember the name, but a recently VC-funded startup used a patent to go after the first startup, and they ended up closing shop.

It solves the chilling effect of patents on startups. Many startups have avoided entire domains because of patents. Large enough companies can negotiate reasonable license terms or fight patents in court, but small startups cannot afford the risk of a dispute.

> It solves the chilling effect of patents on startups

How?

From the http://thepatentpledge.org/ website -

---

These companies have agreed to be the first to publicly renounce aggressive use of software patents on small companies. Please join them!

A Thinking Ape, Airbnb, Bump, CarWoo, DailyBooth, Disqus, DotCloud, Greplin, Hipmunk, Justin.tv, Loopt, Songkick, Stripe, Weebly, Wepay

----

I think the whole YC gang is going to promote this aggressively, which means a strong network effect. Remains to been seen what happens outside this network.

Do any of these companies have patents that they could use aggressively?

Well, Stripe is not YC, but your argument makes sense. I don't know how others are supposed to take this pledge "officially" other than by posting a blog post and emailing pg however. Maybe there's a secret cabal that of startup people use as a channel to converse anyways though ;)

The content of the pledge seems to indicate that there are a lot of (or at least some) cases where large companies are suing very small companies (< 25 people) over patent infringement. Is this the case? I've only heard about the patent litigation between the tech giants, and not anything about small firms getting sued by larger ones. Are there any recent/high profile examples of this that I missed? Or is it just something that goes unreported?

The recent This American Life ep "When Patents Attack" (http://www.thisamericanlife.org/radio-archives/episode/441/w...) started with a segment on a startup called Fototime, which was very small (certainly under 25 people) and had to settle a patent suit at great expense. (As part of the settlement agreement, they aren't allowed to say how much; only that it was just short of what would have caused them to file for bankruptcy.)

Fototime was threatened by a NPE (aka troll); I can't imagine this pledge could have helped them.

True.

Incidentally, for those who are curious, the three patents used against Fototime (as well as more established companies like Flickr) can be found at http://www.google.com/patents?id=uiAPAAAAEBAJ, http://www.google.com/patents?id=0J8DAAAAEBAJ, and http://www.google.com/patents?id=-QEWAAAAEBAJ. The first two actually feel substantial and specific (probably too specific for Fototime to have been infringing); the third one is just a simple database schema and a flowchart, which is madness (though it, too, is so specific that it's unlikely that anyone was actually infringing).

This is ultimately not a helpful avenue to pursue. Asking companies to please not abuse a favorite group of companies (in this case startups) is not a solution to this problem. It's very similar in my opinion to the patent exceptions being carved out in congress right now for the finance industry (their favorite group of companies). We need to be striving to help everyone with patent reform, not just our favorite types of companies.

I appreciate the good intention of this proposal, but it doesn't really make so much sense. Tech startups are small businesses, but their goal is to grow. With that pledge you could only grow up to 24 employees, and what then? You're ready to be slaughtered?

This problem needs to be fixed at its root, with a different law.

So if a company grows beyond it's sub-25 people are they expected to then license any technology they're infringing on? Could this lead to an even bigger penalty if the company is made aware that they are infringing when they are small and doesn't act on it when they grow, thus willfully infringing?

I think the idea is that if the company is successful enough to have grown to 25 employees, it stands a better chance of having access to competent legal counsel and other resources. The penalty might be bigger in monetary terms, but smaller in terms of making the founders' lives a living hell.

This is a "spirit of the law" with no "law".

PG's solution, while elegant and functional for individuals, will fail for corporations.

We have a spirit-of-the-law in America with regards to being a citizen: you pay taxes and receive benefits of living here. Corporate persons are, one would imagine, also party to this spirit of the law, yet they not only ignore the spirit, they find ways around the tax laws on a regular basis.

Even if companies were forced to comply with this by law, they'd just find away around it. Sub-25 person shell companies making up large corporations. Who knows.

The fundamental problem is the same as with the rest of corporate personhood: we have given corporations the rights of individuals but they lack the implicit ethics and social peer pressures which result in moral behavior.

PG, you're absolutely right - IP is a real problem, that so far no one has decided, but I think Moon have also another one side - limits to 25 will run to huge number of small startups that can not be grow more then 25 peoples and this is can stops investment from venture capitalists. I think, we dont need draw a line between huge and small startups. We just need another patent system - transparent and work well as we need. At first, we need to know, was gived a patent on our inventions or not - by few clicks. At second - we need to know, what kind of invention and claims for it was pended but still have not sugessted. At third, we need to see all climes of concurents patents - because we are allways can invent another one claims, and build on them ower new products, that we can protect. I think we can solve this problem - as technicians, we are much easier to prepare a bill and after appeal to members of Congress or the legislature with a request to meet our demands.

We need to change the whole system. Obtaining a patent should be a simple thing as buying a domain name or product in the online store. Now, placing an order, we practically give it to the blind - we do not know if already issued a patent for the same invention or is it the same invention is filed by someone. We do not know this and therefore has a great chance that in six months we will letter of refusal and then we just lose time. This is I'm think about. And, IP and Patents is a strongly related to my startup, I'm will apply to YC W12.

Several have already pointed out that this pledge doesn't address the top biggest issues with the patent system: Non-Practicing Entities (trolls) and 'weaponized' IP litigation.

It would be more interesting if someone with the necessary legal muscle could design an effective and legal "IP shelter" from the U.S. patent system . The structure would be some series of foreign companies/organizations that could claim immunity for internet products as they would be 'foreign' and therefore not infringing. There are obviously many legal and tax issues that make this difficult (PCT, not viable for physical products, etc). However, if it could be designed and then templatized, much like Series funding documents have become, then it would allow any startup, but especially ones that attempt to tackle traditionally hostile industries (MAFIAA), to exist in a 'safe haven' away from the utter nonsense that US intellectual property has become.

Even if it creates some $X burden on startups, I am sure that most startups would be willing to pay this expense if it takes the risk of an Armageddon-like legal suit out of their startup picture. It would also be a forcing function on the US legislature due to loss of prestige and possibly revenue (imagine if the next Google incorporates in Canada and only a subsidiary works in California due to patent concerns).

This pledge boils down to "shine light on bad actors", but I doubt it will change any behavior. Only rent-seekers [1] want software patents to exist, and you can't decrease their reputation any more, it's already 0.

The S. Ct. already had their big chance in Bilski to dial back software patentability, and they blew it. Our only hope is Congress. (/me shudders hopelessly)

And to anyone suggesting we abolish patents completely: they increase societal utility in many sectors, most notably pharmaceuticals.

[1] lawyers and trolls.

I'm not so sure pharmaceuticals are an example of good patents. Most of the patented research is actually paid for by taxpayers through the NIH, and then paid for again by patients through exorbitant prices for 15 years. Then there is the problem of people in the third world dying because of the high prices charged by patent monopolies.

The pure research funded by taxpayers via the NIH or university research represents a tiny fraction of the cost of getting a new treatment to market. The patents cover the risk of taking raw research through testing and development stages that can cost hundreds of millions of dollars and still not deliver a viable product at the end of the process.

The patent monopolies are partly there to offset the very high costs of getting FDA approval, which are there in order to ensure safety and efficacy, to prevent people from dying from unsafe pharmaceuticals. And this causes people to be unable to afford drugs that could have kept them from dying, because the prices need to be high to pay for the testing.

I'm not sure what the right balance is between caution and cost in FDA drug trials, but I think that the procedure should probably be made less rigorous (and long, and expensive) than it is today.

The U.S. FDA desperately needs to adopt the EPA's window sticker model. You can market an inefficient car, but it has to have a window sticker that tells the customer exactly what they are getting into.

There is a problem with patent thickets in pharmaceuticals and biotech interfering with innovation, see Carlson's book Biology Is Technology for a good discussion of the problems there. A better alternative for pharmaceuticals may be for whoever puts it through trials to get a patent or license since that is by far the most expensive part for drugs. To an extent that is what has been happening with biotech startups inventing possible pharmaceuticals then their being purchased by large companies that develop them further and run the trials. If you are interested in drug development, http://pipeline.corante.com/ is an interesting blog to follow.

How exactly did the Supreme Court blow it? They affirmed the Fed Circuit opinion that said to stop using State Street and Alappat as precedent. Those two rogue court decisions were the only reason we have software patents. Aren't we now back to Benson, Flook and Diehr?

Bilski is ambiguous. At first the patent bar thought the Fed Cir would interpret it as "business as usual" but the Fed Cir has recently been using it to push back slightly against software patents. It's a terrible outcome because everyone wants a clear line on patentability and the S Ct didn't deliver.

The line drawn in Benson, Flook and Diehr would be adequate to solve virtually all of today's software patent problems. Shouldn't that be where the line is drawn now? Here's what the Fed Circuit said, and the Supreme Court affirmed it:

Therefore, we also conclude that the "useful, concrete and tangible result" inquiry is inadequate and reaffirm that the machine-or-transformation test outlined by the Supreme Court is the proper test to apply. As a result, those portions of our opinions in State Street and AT&T relying solely on a "useful, concrete and tangible result" analysis should no longer be relied on.

I wish you were on the Federal Circuit. A majority of judges on that court don't agree with your reading of the cases.

This is a nitpick but I think the pledge should read "No first use of software patents against companies with fewer than 25 people," since people are countable:

http://englishplus.com/grammar/00000214.htm

I'd like to see a different Patent Pledge.

One where software engineers pledge not to participate in formal patent creation. Because ultimately, all of the software patents out there were 'authored' by a software engineer. You have to have the person that actually invented the new implementation on the document.

Sure, your employment contract says that any IP you create on your employer's dime is owned by your employer. And so, sure, they could go out and pursue a patent for some new implementation that you invent. But you can stand up and say no, that you won't participate in the 'patentization' of your work (ie the formal, legal work to obtain the patent).

And without your involvement, it would likely fail. It certainly makes a statement internally and externally, at least.

How does this work? Well, you can make that commitment - in writing and verbally - when you join a company. Or you could simply state as much, formerly, in an email to your boss and superiors tonight when you get home.

With the software engineering talent market what it is anyone but a dope-shit code monkey has the leverage to dictate terms.

Well, you can make that commitment - in writing and verbally - when you join a company.

With most employers, the statement is "For a period of one year after leaving employment, I will review and sign all documents needed to attain intellectual property protection for work done in the scope and course of employment."

Yes, exactly. Which is why you would redact that line and tell them you can only sign the contract without that clause.

In the current climate NO software engineer should be signing any employment contract handed to them without making some change - there is tons of opportunity to leverage better terms in the current market.

dotBen - do you work in Silicon Valley? Unless you are a CxO, there is almost never any modification of the employment contract, and certainly never any surrounding the IP elements at a VC funded company of any stature.

In 95% of the cases, if you won't sign the contract as provided, it's a deal breaker and you aren't hired. I'm not saying there aren't exceptions for special cases. And, clearly for non VC funded companies there is more flexibility - but the employee contract in the valley is pretty much an immutable template.

ghshephard - yes I live and work in SF and Silicon Valley and have done so for 6+ years.

I always dictate my own terms on contracts. I advise others to do so too.

Have you tried to hire engineers in Silicon Valley? I've heard of employees who've negotiated $50k cash signing bonus, 8 weeks holiday a year, a personal assistant to do their grocery shopping, agreement that the founder will personally invest $300k in the employee's future startup (these are separately, not the same contract).

Good engineers can get whatever they want.

I like the idea of pledging, though there may be some variance (what if a startup violates a startup, margin is high, the technical innovation was real, etc?) That being said, there is a lot to be said in simplicity.

I'm no lawyer - I have to ask the logical question - does publicly stating this pledge bust any opportunity to double back (i.e. it is more legally binding than just a pledge?)

The purpose of patents, as I understand it, is to propose a compromise in order to promote innovation: the company which publicly discloses its non-obvious innovations through a patent is granted a MONOPOLY RIGHT by the government, and enforced by the courts, to prevent anyone else from implementing this invention without paying licenses. (Depending on the country, they may be forced to offer licensing, or not.)

In the software industry, patents are unnecessary. Because whatever is patented, even if it is not obvious WHEN patented, it (or a variant of it that falls under the patent) nevertheless becomes OBVIOUS to lots of people a mere 3-4 years later. Therefore, we can easily explain how a 20-year monopoly has wound up HURTING the industry rather than helping it. Companies implement an invention WITHOUT rummaging through new patents that come out every year. It is obvious that most of the stuff implemented in the software industry was arrived at in a different way. Non-practicing entities can sue those who actually implemented the invention 3-4 years later. Meanwhile, those who implemented it, get hit with a suit.

Therefore, patents have now become a tax on innovation.

I repeat: the inventions were not obvious AT THE TIME THEY WERE PATENTED. And, those who ultimately implemented them DID NOT READ THE PATENTS in order to get the idea for the invention. Therefore the system is not serving its purpose.

Patents are an exchange between the inventor and the public. The inventor discloses how an invention works, and in return gets a monopoly for 20 years so that no one else can implement it.

In open source, the IMPLEMENTOR not only discloses a theoretical thing but actually builds it AND releases all the inner workings of it, AND others can build on top of it. So we get the upside with no monopoly. Why do we need the latter, then, if so much innovation happens without it?

I suppose it would be a good start, but the self-interest in this proposal stinks a bit. What's the distribution of employee numbers in companies in which Y Combinator has a stake?

Actually most of the value of our portfolio consists of companies with over 25 employees.

Of course, the bulk of the valuation is in the startups that have grown enough. You still have vested interest to protect startups while they are small, this is when you add most value anyway.

The only problem I see with patents is the legal process (legal bullying). It should not take 2 years and $1 million to prove your innovation does not conflict with another patent. That's ridiculous! Ideas & companies are killed by the threat & cost of going through a lawsuit, not by the threat of actually losing a law suit. That's why so many companies would rather pay a fee to use a patent than actually go through a lengthly lawsuit to fight the patent owner. (See Microsoft & many phone manufacturers.) It's called legal bullying, not patent failure. It doesn't just happen in the school yard anymore. PG is simply trying to get the 6th graders to stop picking on the kindergartners, so the kindergartners can play safely in their own playground.

1. Large companies aren't on this list and are unlikely to put themselves on the list. There is no competitive advantage to be there.

2. There's a presupposition that small companies are somehow better then large companies. I can say that a company like Lodysys is likely under 25 people. You don't want to put yourself in a position where you have agreed not to be agressive with any company based on their size. Many of the Inc. 500 are under 25 people.

I'd rather see a simpler pledge.

> We will use our patens defensively, not offensively. > (Optionally) > We will license our patents only to others who will use them defensively.

Agreed. You're the first person I found on this thread who seems to share my belief that simply white listing every company with 25 employees or under (based on headcount alone) is extremely naive.

Not a bad idea...like Paul said, it's a start. Here's a comment that I read from some user on Slashdot regarding the Apple vs Samsung/Motorola patent dispute that summarizes my feelings:

"Look, you pack of fucking navel-gazing fucktards. Put down the fucking guns, agree to pool your resources to buy sufficient hookers and Caribbean vacations for Congresscritters to have the existing patent system tossed out the door. We get it that you all sort of started out accruing vast numbers of patents, some good, some bad, some absolutely fucking moronic, in no small part to fend off attacks from each other and from evil little patent trolls, but look at how it's complicating your lives. You couldn't roll out a steaming turd without someone somewhere trying to claim you infringed on a patent they own.

Apple, you're now one of the biggest companies around. If anyone can afford the required number of prostitutes, golf club memberships, or whatever it is those corrupted evil bastards in Congress have an appetite for. Google, come on, you could help out here, same with Samsung. Then you can, you know, compete on the quality of your products, rather than trying to stuff newspaper down each others throats in what can only be described as the bonfire of the idiots."

I am sure there are a thousand reasons that these ideas would not be feasible, however I have been thinking of two other approaches towards software and business process patent reform. (1) would be to shorten the time that a patent is valid to 1 year . Give the Company who 'invents' (and goes through the patent process) a small head start, however in today's quickly changing world, I think that this shorter time-frame is more proportionally in-line with the R&D investment of these types of processes. Patents that protect the Physical items (that in general are more costly to develop and take a longer time to implement due to the more expensive and time consuming manufacturing processes) the protection would remain longer (engines, chip-sets, medicines, etc) I think that these shorter term-limits will shake out the patent trolls, yet still allow a patent holder some opportunity to leverage their work and license to companies that could not wait the 1 year, however after that, it is all about execution. (2)Perhaps another approach (and much less realistic) would be to keep the existing term limits, but have a prix-fixe license fee schedule/menu for all software and business processes. There would be a few Tiers of patents (i.e. Class 1, Class 2, Class 3, etc). You would apply to a patent (and a Class) and the license fees would spelled out for the annual license fees. Perhaps the Amazon 1-Click Patent would be Class-1 (i.e. "pretty darn obvious" and the fees would be $100 per year), etc. Anyone willing to pay the fee could license the patent (no one can be denied). This would also stop hoarding, and would allow people with legitimate inventions to monetize their investment, however still allow those that feel that they can execute to also move forward an innovate.

Afer reading the story about Ugmode/Modista, a suggestion for any start-up facing this problem in the future: GET THE WORD OUT ABOUT YOUR PROBLEM!

1. Escalating embarrassment of like.com could have soured their potential acquisitions and forced them to settle. 2. If lawyers hear about your problem, they might help you. If you had the ability to reach every lawyer, professor and law student in the country, you would find someone. (Maybe not someone great, but someone who can at least avoid a default judgment and keep you in the game for another couple of years, and possibly emerge victorious.)

n.b. You do not need, or, probably, want, a patent attorney to litigate a patent case. Patent attorneys do tedious stuff with the PTO, courtroom litigators convince judges and juries. Nor do you need a lawyer from your city or state. You could have some kid fresh out of law school in Alabama dialing in to Northern District of California judicial teleconferences and filing your motions electronically.

-- Former patent litigator who would have liked to help, if he'd heard about this

I think this is a good idea in theory, but the patent trolls are ruthless as ever. Their primary motivator is making money, and I doubt they'll stop their actions.

On the flipside, if this can garner public pressure against the trolls-- and perhaps some real action in changing the laws, I think the world would be a better place.

Keep it up Y Combinator!

Having just listened to the "When Patents Attack!" podcast today (http://www.npr.org/blogs/money/2011/07/26/138576167/when-pat...), I question how this addresses what I saw as the fundamental challenge with patent trolls -- shell corporations. These companies are spawned as needed to sue the alleged patent infringers. Since the shell companies are just a bunch of lawyers and the ownership of a patent, there's little in the way of assets to counter sue for (i.e. there's not much for the suing entity to lose). I don't think these guys will be swayed by a moral or ethical argument either. And since these shell companies don't employ coders, well, I don't expect it will impact who coders decide to work for.

Potential problem: I suspect many patent troll companies are small (<25 people), and the patent pledge could potentially prevent companies from taking preemptive action against these trolls. I don't think this is a dealbreaker, but it's a probably unintended consequence which should be drawn out.

I think you could come up with some sort of patent truce, you use a search engine that finds overlapping patents. The truce comes with a constitution/trust that declares some metrics for that search engine. Any patents that go over that metric are not to be used for litigation by members of the truce.

You can require members of the trust to invest in the trust at level relative to market cap. Breaking the trust results in loss of the assets/cash invested. The trust can also fund a defense pool/lobbying budget to protect the interests of the trust. Namely that members outside of the trust cannot successfully litigate on patents the trust hase agreed are frivolous.

edit: obviously transparency, open membership and some high profile members are useful for such a plan.

Companies with less than 25 people are relatively unlikely to have sufficiently deep pockets to attract patent attacks in the first place. And trolls, of course, won't care about the pledge. Nice idea, but doesn't seem that useful to me.

Why not just have all companies pledge not to settle frivolous patent suits? The way the trolls make their money is by realizing that its cheaper for these companies to settle than to duke it out in court. The lawyers don't even care if you aren't infringing because it really doesn't matter. The trolls survive because people aren't willing to fight it out against them and they can pick on the weaker and smaller companies. If everyone said at the outset, "I will fight to the death a frivolous patent suit with all of my resources" the trolls would run out of easy targets.

There are millions of programmers in the world and most of us don't like patents. That should be enough to prohibit them by consensus. If we don't raise our voices in our own field, nobody else will do it for us.

I applaud that move.

The thing is, does software innovation happen in companies? Yes, but also no: universities and free software also play a role.

Patents are largely a problem of companies buying government. But what about the people?

This might usefully and reasonably be expanded to cover an individual or a non-profit of any size including universities, as well as a small company, in parallel with the Patent Office's definition of a "small entity" for reduced fees.[1] Companies suing universities for patent infringement for doing research is similarly problematic for innovation.

And, I think the intent would be served equally well by getting rid of the restriction to software patents.

[1] Although the small entity rules define a small company as a maximum of 500 employees, rather than 25.

I think this is a great idea and that it will prevent pledging companies from engaging in patent abuse, but I wonder how many large companies will bother to sign up for it. I imagine that if Apple/Google/MS all just take a pass that they won't catch much flak for doing so.

I wonder though if we could make the whole thing more effective by also adding an underlying threat to the pledge:

That any company, patent pledging or not, who violates the <25 rule will have their talent actively recruited away by those companies that have pledged.

Have any lawyer-types looked at this? IANAL, but I kind of doubt corporate lawyers will allow this even informally. For any target that a big company would want to sue, I'm pretty sure that going through with this pledge would leave the company vulnerable to a laches defense (basically, "You should have sued me before I invested billions in this") once the little startups aren't so little anymore. If I'm talking nonsense, anyone can feel free to correct me. It will be cool if this works.

From what I understand, the key points of software patent reform would be (a) significantly raise the bar of "non-obvious" and (b) shorten software patent lifetimes. The related issues of small companies being at a disadvantage (due to economies of scale with litigation and patent portfolios) seems rather orthogonal.

Since this pledge would only address this issue of secondary importance, which seems a lot less salient to the public, I can't imagine it getting off the ground.

People make crappy products then slap patents on them so no one can compete with them. For the greater good of society this should be illegal, competition breeds innovation right, if you make something crappy, you should welcome someone else to make it better, after all, if it was something you actually used, YOU would want it to be the best, no?

Also, patent trolls that create patents for ideas they have, and are completely incapable of executing.

Software patents are crap.

>Technology companies win by attracting the most productive people, and the most productive people are attracted to employers who hold themselves to a higher standard than the law requires.

The problem is, the ones doing the suing (like blackboard which PG mentioned in a comment elsewhere) are the weaker companies with a lot to lose (as mentioned in "Are Software Patents Evil") who probably aren't attracting the best people to work for them anyway.

pg is concerned with startups, and I am too. But I think a lot of the rest of the world is concerned about what's going on between, say, Apple and HTC.

I'm a fan of the declared, taxable value of patents rather than making an arbitrary pledge that could result in a surprise attack.

My main concern is that the knowledge of a small company possibly infringing on IP (regardless of whether you feel patents exist or not) greatly disrupts the acquisition options by a larger company, as they would devalue the smaller company based on expected patent licensing/legal attacks.

Does anyone else find the pledge hard to read/interpret? I think I read it 3 times before the meaning sunk in. Granted, I hadn't read the rest of PG's article yet. Short and memorable (e.g. "Don't be evil") might be better. My suggestion: "[Insert company] won't sue companies with less than 25 people for patent infringement." It ain't perfect, but that's what I got.

"when established companies with bad products use patents to suppress small competitors with good products. This is the type of abuse we may be able to decrease"

This is not abuse. This is the purpose of a patent. It gives you the ability to be as shitty as you want and still be the only gig in town. Society says "wow you're terrible, but thanks for letting us all know how you did it!"

Just a relevant anecdote from the trenches -- a friend of a friend was a co-founder in Israeli start-up and they were approached by a Redmond company with an investment inquiry. An inquiry which was backed by a patent that would've been used to sue the startup should they not enter negotiations. And so they "negotiated" and in the end took the money. The end.

I'm worried that this pledge would legitimize software patents on some level.

Even if the road to a software patent-free world is a long one I think it's better to pursue that than compromise this way.

What if a company hires its 26th employee? Is that an invitation to litigate?

I commend Paul Graham on at least trying to contribute his ideas but I think we need to think more on this.

Volunteerism doesn't work when there is too much money at stake. How much has that green consumer really done for the environment without assistance from a carbon tax? Like calls for conservation, this is well-intended, but a distraction from the real problem, which is that the patent system is badly engineered for innovation.

I also hope the patent pledge site will progress towards discouraging companies like that of Like.com by including instances of how they shamelessly killed Modista. Like PG, I am still ambivalent about patents (though mostly believing they are bad), but clear cases of misuse like these need to be emphasized and publicized.

''The patent pledge is in effect a narrower but open source "Don't be evil."''

I get 'narrower' but what does 'but open source' mean here?

Why should small companies deserve special protection? If the current patent system is just, let them sue anyone big or small. If the system is broken, they shouldn't be suing big companies either. How about a pledge not use ridiculous patents to sue anyone? That may be way too vague, but that would make more sense.

Speaking of patents, (although this is a month old now) I recommend everyone listen to the show This American Life did covering patent trolling: http://www.thisamericanlife.org/radio-archives/episode/441/w...

The problem with this pledge is that any company that would make the pledge and stand by it already isn't a patent threat.

It's the companies that would make the pledge and break it or not even make the pledge at all that are the problem. Beyond a little peer/public pressure, this pledge does very little to address those companies.

I was checking the source code for http://thepatentpledge.org/ and noticed a reference to favicon.ico which is not there (returns a 404 Not Found): http://thepatentpledge.org/favicon.ico

What about as a further peer-pressure type 'good citizenship' patent thing - a voluntary pay $x per patent in your portfolio to a non-profit which uses money to search existing patent-base and seek to preemptively invalidate invalid/frivolous patents. You could have a little badge on your website or some such.

Is there a way for other companies to make the pledge from that site? Or is this limited to friends of PG for now?

Great idea pg but what exactly does it fix? After you have 26 employees they will take you down like before the pledge. What can a company with 26 employees do against a arsenal of lawyers and patents? Do you think after having 26 employees you should have enough money to counter the attack?

Jennifer Urban and Jason Schultz are developing a legal construction called the DPL (defensive patent license) to solve this problem.

http://www.google.com/search?q=defensive+patent+license+DPL&...

Great stuff! I would add my company, but there is not point - I have no patents!

I think until we see Microsoft, Google, Oracle and Apple on that list it wont be worth much.... and if we do see Apple on that list, would be believe them? and would they care if we didn't believe them?

Do non-trolls really bring patent cases against small companies? A company of <25 people probably doesn't have the cash to make a financial settlement worthwhile, and if a small company has a good product it'll have >25 people soon enough.

PG - Could this lead to companies on the list agreeing not to license their patents to patent-unfriendly companies? Seems that could do a lot to pressure bigger companies into leaving smaller companies alone.

I agree with pg, although I am concerned this might take away from the urge to reform software patents the real way:

I would propose to eliminate software patents, or limit their time frame to 2 years. The industry moves way too fast and 17 years is way too long. I know pg wrote that "if you are against software patents, you are against patents", but consider this: the 17 years are completely out of proportion to how quickly the software industry moves. And the pace at which they are submitted is simply too great for the patent office to do anything appropriate in most cases. When we apply the patent trade-off to it, you get a negative result, not a positive one.

The patent trade-off is essentially that the company discloses their "secret" invention to the public, in exchange for a 17 year MONOPOLY (enforced by the government) on so much as implementing this invention in any context.

In software, innovations such as "in-app purchases" or "one-click buying" may not be obvious in 1997, but a couple years later they become "incremental improvements" that are pretty obvious to everyone. In fact, OPENNESS (open source, especially on the web with HTML, CSS and Javascript) has been the biggest driver of innovation, and not patents. Clearly, there are other motivations besides having a monopoly, and those motivations don't need the patent system at all. In contrast, they are being stifled by the patent system.

No one read the lodsys patent in order to "invent" in-app purchases. They were just bloody obvious to implement when the time came. Almost any experienced practitioner in the art would have said it was obvious when they were introduced. Then Lodsys came out of the shadows and demanded money.

My point is that the very purpose of patents is being undermined. It is supposed to promote innovation, by letting companies feel safe disclosing their "trade secrets" and "secret inventions". In reality, though, these inventions are extremely obvious to everyone when they are introduced a couple years later, and all software patents accomplish is the downside of the compromise: namely, a patent troll (a company that never implements anything, but just files patents) actually comes out and leeches money from those who DO implement the innovation.

That makes innovation more expensive, and patents become like a tax on those who actually IMPLEMENT ideas -- which we all know is much more important than merely HAVING them. For up to 17 years anyone implementing this will have to pay, and is the industry better off? Not at all. It moves so fast, that in a couple years, what was patented by a troll becomes the next obvious step. Software patents for 17 years are not benefiting society.

Can someone clarify for me, what does "no first use" mean? Does it mean you can't sue a small start-up for being the first to use a patent you already own?

I understand it as "we will not fire at you unless fired upon".

The number thing is abusable. Witness facebook still operating under the SEC's 500-person limit:

http://dealbook.nytimes.com/2011/01/03/facebook-and-the-500-...

I'm not aware of any measurement method that any moderately smart rules lawyer (aka anyone who's played more than 5 hours of a strategy video game or pen and paper RPG) couldn't figure out a way around.

One way to frame that is "This is abusable. All you risk is the NYT writing an article trashing your behavior." The 500-shareholder rule is fairly obscure among laypeople, and pretty much only popular among people who litigate the cases it creates. So someone patent-trolling might suffer even more.

Its a bandaid where a bazooka is needed... but its an epsilon of improvement in the right direction.

From the companies that pledged so far, how many actually holds any patents?

I'd like to see a site for crowd-sourced prior art. That would be cool.

As far as I know, pledges are legally worthless.

I'd love to see an rss feed on the pledge site.

Anyone know how many employees Lodsys has?

It's the Gentleman's rule for patents.

I think it solves everything unless patent trolling.

Here is why. Well let's say Microsoft marks its name into the current patent pledge because it’s so green to be in the patent pledge even in its current form.

So now, it is the same as always, Microsoft will not be able to pursue ANY company which SEEMS to be a STARTUP at a given time from the point of view of the mass. Do you understand? Microsoft can’t say: “Hey! Are you dumb? This company has 26 people so I can sue them. Don’t troll me fools!” Hello the greenness… That’s too late! The goal is to be green, nobody care about the strict truth. I think even a hype company with 500 people can be safe with the current patent pledge.

And probably it may even overtake the patent framework. It may be almost a "don't sue a startup" pledge.:d

>Already most technology companies wouldn't sink to using patents on startups. You don't see Google or Facebook suing startups for patent infringement.

You would, however, see Facebook sue startups for using the word "book" in their website name.

Just as you saw Google suing startups for naming themselves "<X>oo<Y>le" when they were search-related in any way. And as you see every competently run company, everywhere defend its trademarks.

Trademarks and patents are very different things.

http://www.searchenginejournal.com/google-tells-booble-to-ce...

That's cute.

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