Start-ups and patents

I have been part of a few start-ups and there has always been the conversations around “are we patenting our ideas?”.

I understand the nature and purpose of a patent and the lofty principles behind it and I still subscribe to them.

The growth of the Internet driven hand-in-hand by the proliferation of free and open source software has changed how I view the efficacy and value of patents. I clearly am on the side of the Free Software Foundation‘s and the Electronic Frontier Foundation‘s stands on the nature of software patents.

The reason there even exists software patents is because the US Patents and Trademark Office has been granting patents for software that clearly have no novel elements and has not been able to drive any new innovations despite the best intentions of the patent idea. It is a meme that the US patent system is broken.

We have to accept the reality that the system is broken and needs fixing, but that would take time, effort and political will on the part of many governments – lots of whom have vested (another way of saying corrupted) interests in keeping the status quo going.

Realising this, many people and organisations have come together to solve the issue. One of those is the 15-year old Open Invention Network which Red Hat is a founding member.

OIN recognises that the only way to work within a broken patent system is to work collaboratively with like-minded individuals and organisations to mitigate the ill-effects of the system. By pooling patents, any member of the OIN will become part of the large group of entities who can defend and remove threats that are brought upon by patent trolls etc.

With this background, it bothers me that start-ups in 2019 are still being “pushed”, “encouraged” by VCs and investors to “patent” their technologies. On the surface, it seems quite logical, but, as noted, it is “on the surface”. Patents are only useful if one actively licenses it out to others. That’s how you generate value from the patents. The more people who use your patents, the better for all. The larger goals of the patent system gets realized.

It does not also matter whether the licensing is offered at a price or at no cost (see Red Hat’s Patent Promise). What is fundamentally more important is that innovation can move ahead without any form of friction.

Here’s a set of questions you should ask if you (as a start-up) is being asked to patent your innovations:

  1. Would these patents be actively licensed out?
  2. Would there be cross licensing of patents with others?
  3. Would the patents be offered into a patent pool?

If the answer to 1 is “no”, “maybe”, “don’t know”, don’t patent it. Publish it publicly in a corporate blog so that it will become part of prior art and can never be patented.  if the answer is “yes”, what is the timeline? How would you actively do so? If you have no plans or are ambivalent, don’t patent.

If the answer to 2 is “no”, “maybe”, “don’t know”, go back to question 1. Why are you bothering to go down a path that you are wasting good money (spent on expensive lawyers, the patent process etc etc etc) and not actively trying to gain any form of return? If the answer is “yes”, how would you do it? What is the timeline? What happens if you can’t cross license? Would you not be better off focusing on getting the product to market than these patent games?

If the answer to 3 is “no”, “maybe”, “don’t know”, stop patenting things. Learn about patent pools. Learn about the value of coming together with other innovators and build real, sustainable technologies for all of society. If the answer is “yes”, be quick and sign up with OIN. Run.

Stop the greed that clueless VCs push.

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