August 2011I realized recently that we may be able to solve part of the patentproblem without waiting for the government.I've never been 100% sure whether patents help or hinder technologicalprogress. When I was a kid I thought they helped. I thought theyprotected inventors from having their ideas stolen by big companies.Maybe that was truer in the past, when more things were physical.But regardless of whether patents are in general a good thing, theredo seem to be bad ways of using them. And since bad uses of patentsseem to be increasing, there is an increasing call for patent reform.The problem with patent reform is that it has to go through thegovernment. That tends to be slow. But recently I realized we canalso attack the problem downstream. As well as pinching off thestream of patents at the point where they're issued, we may in somecases be able to pinch it off at the point where they're used.One way of using patents that clearly does not encourage innovationis when established companies with bad products use patents tosuppress small competitors with good products. This is the typeof abuse we may be able to decrease without having to go throughthe government.The way to do it is to get the companies that are above pullingthis sort of trick to pledge publicly not to. Then the ones thatwon't make such a pledge will be very conspicuous. Potentialemployees won't want to work for them. And investors, too, willbe able to see that they're the sort of company that competes bylitigation rather than by making good products.Here's the pledge: No first use of software patents against companies with less than 25 people.I've deliberately traded precision for brevity. The patent pledgeis not legally binding. It's like Google's "Don't be evil." Theydon't define what evil is, but by publicly saying that, they'resaying they're willing to be held to a standard that, say, Altriais not. And though constraining, "Don't be evil" has been good forGoogle. Technology companies win by attracting the most productivepeople, and the most productive people are attracted to employerswho hold themselves to a higher standard than the law requires.[1]The patent pledge is in effect a narrower but open source "Don'tbe evil." I encourage every technology company to adopt it. Ifyou want to help fix patents, encourage your employer to.Already most technology companies wouldn't sink to using patentson startups. You don't see Google or Facebook suing startups forpatent infringement. They don't need to. So for the better technologycompanies, the patent pledge requires no change in behavior. They'rejust promising to do what they'd do anyway. And when all thecompanies that won't use patents on startups have said so, theholdouts will be very conspicuous.The patent pledge doesn't fix every problem with patents. It won'tstop patent trolls, for example; they're already pariahs. But theproblem the patent pledge does fix may be more serious than theproblem of patent trolls. Patent trolls are just parasites. Aclumsy parasite may occasionally kill the host, but that's not itsgoal. Whereas companies that sue startups for patent infringementgenerally do it with explicit goal of keeping their product off themarket.Companies that use patents on startups are attacking innovation atthe root. Now there's something any individual can do about thisproblem, without waiting for the government: ask companies wherethey stand.Patent Pledge SiteNotes:[1]Because the pledge is deliberately vague, we're going to needcommon sense when intepreting it. And even more vice versa: thepledge is vague in order to make people use common sense wheninterpreting it.So for example I've deliberately avoided saying whether the 25people have to be employees, or whether contractors count too. Ifa company has to split hairs that fine about whether a suit wouldviolate the patent pledge, it's probably still a dick move.
