Startups Can’t ‘Give It A Rest’ on Software Patents

David Kappos, head of the United States Patent and Trademark Office, gave a presentation yesterday morning telling those claiming the patent system is broken to “give it a rest.”

Kappos approached the debate over software patents in context of smartphone lawsuits between large corporations like Apple and Samsung. He admonished detractors of the patent system to “get the facts.” Here at Engine, we’ve been following developments in the patent system closely; the fact is startups can’t afford to give it a rest under the current patent regime.

The economics are clear: startups fuel net job growth in the U.S. economy. Small, technology-focused businesses are developing innovative products and promoting competition. Software patents are a real challenge to young firms that don’t have the legal resources to defend themselves against non-practicing entities -- often called trolls -- that use patents for litigation instead of innovation.

A June paper from Boston University showed that patent trolls cost companies $29 billion in 2011 in direct costs from litigation. While large companies pay more of the overall settlement and legal costs, the expenses make up a greater share of smaller companies’ revenue, according to the research.

Last Friday, we attended a conference aimed at finding solutions to the software patent problem. Hosted by the High Tech Law Institute at Santa Clara University Law School, lawyers, software engineers, and activists came together to discuss possible solutions. Legal, procedural, and economic ideas were floated, but investor Brad Burnham of Union Square Ventures made a critical point, saying that 25 percent of USV’s startups had been sued and that half had received demand letters. Suits like these don’t just cost companies revenue; they threaten the survival of startups and destroy jobs.

Policymakers like Kappos must recognize the existential threat bad patents pose to young companies. While he emphasized new review procedures available to PTO after passage of the America Invents Act, the fact is that the measures in place insufficiently protect small companies facing predatory patent suits. The last thing the startup community needs to do is to give software patents a rest. At Engine, our community aims to lead the discussion on how to move forward.

Picture courtesy of Alan Kotok.

Colleen Chien Patent Research: Startups Paying the Price

Patent lawsuits create big problems for small companies and startups which pay a larger share of their revenue and resources fighting them than larger companies, according to research published by Santa Clara University Professor Colleen Chien.

In July, Chien testified before the House Judiciary Subcommittee on Intellectual Property about the need to change a patent system that harms entrepreneurs and innovators more than it helps. Afterward, Engine sent out a call for startups who had been affected by patent litigation to share your stories with Chien to assist with a study into the impacts of patent litigation on startups. Chien listened to your stories, tabulated the survey results, and used them concurrently with her comprehensive analysis of patent litigations from 2005 to present. The findings:

• Small companies are more likely to experience “significant operational impact” due to patent demands.
• Monetization of software patents is an iffy investment. Few software patents are actually valuable, and the patent market is a risky lottery type situation rather than something investors or companies can rely on. 
• Most startups don’t patent anyway because of the expense.
• Startups are often targeted because they are users of technology -- like retail or hospitality outlets that have WiFi.

Startups and small companies are among the most negatively impacted by patent litigation. The need to protect America’s startups, and to create an environment that isn’t chilling to new firm establishments, is vital to our continued economic growth and job recovery.

Chien notes that existing proposals, like the SHIELD Act, may work differently for startups than they do for larger and more established companies, who are more constrained by time and resources and thus cannot bear even the lessened drain on resources that these reforms provide. The SHIELD Act functions on a “loser pays” system in which the costs of invalid suits or non-infringed cases are paid by the bringer of the case. However, in the case of a small startup, the resources and time drained in order to prove that the suit is invalid or prove non-infringement may still be too high.

Policymakers need to be aware of the high costs patent litigation imposes on startups under the current system and under proposed reforms. The entrepreneur community should guide policies that lessen potential negative effects on startups and young businesses. Startups are the key to economic growth and global competitiveness in this country, and government regulation needs to reflect this.

Kent Walker: Embrace the Future, Fix a Broken Patent System

The future of America’s economy depends on policymakers embracing and fostering technology, according to Google’s Chief Counsel Kent Walker, who spoke at an open forum about the intersection of technology and policy earlier this week. Around 200 attendees gathered in Aspen, Colorado for an annual gathering of the Technology Policy Institute -- a Washington, DC-based policy think tank -- to discuss the most pressing policy issues the innovation economy currently faces.

Near the top of that list is how we think about software patents. As many startups have discovered in the course of building innovative products, our current system is largely broken. Walker, who has a long history of serving with some of the leading names in American innovation, from Netscape to AOL, identified three areas of policy development that would better serve the innovation community.

First, we should re-engineer the patent system to support, rather than attack innovation. Google made some news on that front last week by unveiling its Prior Art Finder database, a tool that examiners and applicants alike can use to search earlier patent applications and avoid duplicative applications. Walker asserted that further steps would be necessary, including re-thinking the utility and viability of the software patent overall, but resetting the system to be one of support is a good first step.

Walker also suggests extending a provision in The America Invents Act that weeds out counterproductive financial business model patents, to include software patents. This measure, along with working directly with the Patent and Trademark Office to discontinue issuing these types of patents in the first place, could ease the burden on examiners and applicants alike.

Finally, Walker warned that innovators must work against the expansion of the current system of litigation that is driving much of the conversation on patents. As a community that has been besieged by a broken patent system, we can and should fight to make serious public policy inroads to better serve the needs of our industry. As Walker says, we must embrace the future, and heed the Samuel Morse telegraph case of the 1800s, by seeking not to define and codify law according to what we know today, but to take care not to impede progress in areas which we haven’t yet explored and discovered.

Walker’s full remarks are available here. Engine will continue to explore opportunities to influence public policy around patents and will continue to update. If you have a patent story to share, let us know about it. info@engine.is

Innovation Should Drive IP Enforcement Strategy

On June 25, the United States Intellectual Property Enforcement Coordinator, Victoria Espinel, reached out for public comment on their Joint Strategic Plan on Intellectual Property Enforcement. Today, Engine, alongside many other groups from the startup and open internet communities, submitted its public comment.

We advocate for an “innovation first” policy, advising that the administration focus on protecting entrepreneurs building enterprises rather than seeking a new, more aggressive approach. It’s a shift in strategy that we believe could fundamentally change the conversation on IP. We ask that the administration consider the high costs of enforcement to startups and other disruptive businesses.

You can read our full comment here and please add your own thoughts here on how you think the U.S. government should approach IP enforcement.

Congress is Asking: Tell Your Patent Story

Members of Congress are seeking comment from the tech entrepreneurial community about how the current patent system impacts their businesses, a promising sign that policymakers are paying attention to the harmful effects patent litigation has on emerging growth companies.

Earlier this month, Santa Clara University Assistant Professor of Law Colleen Chien testified before the House Judiciary’s Subcommittee on Intellectual Property about the desperate need many startup founders and entrepreneurs face for reform of the patent system. Resulting from that discussion in Washington was a sense that members of Congress need input from our community with regard to what’s working and what isn’t with patents.

Professor Chien has put together a brief survey for those of you at startups who spend your time working on patent demands, to share your experiences with the current system. The survey responses will form the basis of opening a dialogue with members of Congress about what’s happening in our community, and what some of the solutions are to improving the system.

So, if you or your company is dealing with these issues, take a few minutes (Colleen promises it won’t take more than 15, and don’t worry, your answers will be kept confidential) to tell your story so we can start down the road of making changes in the patent system that work for startups.

Patent Lawsuits May Cost Startups Billions

Patent litigation is becoming an expensive hurdle for startups, and people outside the startup community are taking note. “It’s not clear that we really need patents in most industries” Judge Richard Posner told Reuters in an interview July 5 following his decision to end a patent suit between Apple and Google’s Motorola Mobility unit. The jurist and professor characterized the proliferation of patents in the technology industry and other high innovation markets as “a problem.”

Posner, a judge on the 7th U.S. Circuit Court of Appeals and professor at the University of Chicago, is a prolific author on law and economics, including the book The Economic Structure of Intellectual Property Law.

His comments follow a recent Boston University study that estimated companies were subjected to $29 billion in direct costs from 2011 patent infringement claims filed by “non-practicing entities” -- companies that operate by collecting fees on patent licenses as opposed to making products. While large companies pay more of the overall settlement and legal costs, the expenses make up a greater share of smaller companies’ revenue, according to the estimates.

Lawsuits brought by entites like Lodsys, a company that has sued app developers for the use of in-app purchases and other fundamental technologies, demonstrate the vulnerability of startups to the high costs of patent litigation and settlement.

A June 25 article by Bloomberg’s Susan Decker highlighted the study co-author James Bessen’s impression of the effect of litigation on entreprenuers and innovation:

“I was surprised at the magnitude and how much of it is really hitting small companies,” said Bessen. “It’s having a bigger effect on innovation than we had thought.”

Startups need a patent system that fuels innovation and incentivizes invention. Money seeped away by lawsuits robs young, dynamic firms of the opportunity to create jobs, enhance their products, and reach new customers. Reforms in the America Invents Act, signed into law in September 2011, didn’t go far enough to protect entrepreneurs. We need new, well-considered legislation to address predatory lawsuits and the billions observed by researchers to be lost to settlements and legal fees.

June 13 Midweek Policy Update

This week in Washington: Cybersecurity legislation may move forward in the Senate, ICANN releases a list of proposed generic top-level domains, the United States Patent Office promotes clean energy partnerships.

Cybersecurity

Senate Majority Leader Harry Reid put his colleagues “on notice” June 10, calling on democrats and republicans to work together to pass cybersecurity legislation that has stalled in previous Senate sessions. The bill faces stern resistance from many technology-focused groups concerned about its impact on privacy.

Open Data

Representative Darrell Issa announced on June 10 the OpenGov Foundation at the Personal Democracy Forum in New York City. OpenGov would allow citizens to actively engage in the policy-writing process through open, web-based technology. Issa is looking for developers to build the tool.

Patent

The USPTO held a meeting of clean technology stakeholders in an effort to improve and expand its clean technology program. Issues discussed included the importance of regional accelerators and an update on cleantech patents.

Spectrum

The FCC holds an open meeting June 13 in which the commissioners will consider moves to make more efficient use of high frequency spectrum for a nationwide interoperable public safety network.

DNS

Also on June 13, the International Corporation for Assigned Names and Numbers (ICANN) holds a press conference unveiling the generic top-level domains applied for in the organization’s expansion program. The application window for the new domains -- which could include .lol and .nyc -- closed May 30. A release from the organization reports that more than 1,900 applications were received.

Twitter's Innovative Patent Agreement

Twitter posted this morning to announce a new arrangement the company has with its developers regarding the patents they have received for their work. It's called the Innovators Patent Agreement and it is an effort to reward their talented people for creating industry-leading products. This also -- in theory -- helps stem the tide of attacks from patent trolls by leaving control of the ultimate use of the patent in the hands of the creator.

Techdirt's Mike Masnick summarizes it:

"The method by which this works is pretty creative. Basically, if the actual patent holder tries to use the patent offensively without first obtaining the permission of the inventor, the agreement allows the inventor to issue a license to the entity being sued."

Read more from Mike at Techdirt, read the full agreement posted by Twitter on Github here. It's great to see Twitter doing something like this, but how about other patent holders? We think it's an innovative idea that could change the wider landscape with increased adoption and we're curious to see how it rolls out. Would it be a good strategy for your company? Let us know what you think over in the comments.

Honeywell, Nest, and the Next Wave of IP Protection

Intellectual property is vitally important to innovation, but there comes a point where patents are so broad that they stifle new products and technologies.  So seems the case when large, long running companies can quash younger innovators with costly, time-consuming patent lawsuits.

There’s been quite a little buzz over startup company Nest’s Learning Thermostat. Designed by former Apple engineers, it features sleek, minimalist styling with a track wheel control, like the original iPod. It operates a self-programming system based on an interview-style interface, and learns your habits in order to predict when to change the temperature and save you up to 30% on your energy bill. It can also be remotely controlled from your computer or smartphone. It’s been receiving accolades as a nifty, attractive and innovative design and has been sold out since early November.

Thermostat giant Honeywell has taken a rather sour grapes attitude to all of this and has filed a patent infringement lawsuit accusing Nest of seven separate instances of infringement.  

These alleged infringements cover the sleek, minimalist styling, or at least the rotatable ring control. The interview style interface. The energy saving features. And the feature to control remotely via the Internet. Honeywell claims that the core design and functionality of Nest’s thermostat are the direct result of years of research and development carried out by Honeywell. The 2008 Honeywell thermostat, the Prestige, does appear to offer many of the features Nest’s does.

But can you really patent the shape of a device?  Or something as ubiquitous as WiFi connectivity now is?  And if you can, should you?

Honeywell’s crusade to “protect its intellectual property” is, for the moment at least, exclusively targeted towards Nest (and Best Buy, who is selling Nest’s products) -- which seems to suggest Honeywell is more interested in keeping innovative startup competitors from entering the market than IP.  But Nest’s thermostat is not the only competitive device on the market right now.  General Electric also offers the ability to manage a “GE smart thermostat” via the internet.  When asked to comment on GE’s system, Honeywell told  All Things D: “I don’t know. I’m not familiar with that product.” Honeywell also told GigaOm last week that it had shelved plans for a “learning” thermostat 20 years ago because they “found that consumers prefer to control the thermostat, rather than being controlled by the thermostat”, and decided to focus on other innovations.

So Honeywell doesn’t (or didn’t) want to pursue this particular innovation. But it doesn’t want a slick little startup like Nest to have it either. The problem is, an industry behemoth like Honeywell has a lot more financial clout and could sink Nest with a lengthy and costly litigation process -- even if it doesn’t win the patent lawsuit, it could at least deliver a critical hit. Which is discouraging for innovation all around.  Because lets face it: Nest’s thermostat is a hot-ticket item because it fuses design with functionality in a way that’s innovative, much like Apple’s recent products have -- not just for its WiFi capability or interview-style interface.

Protection of intellectual property is important, and we must take active steps as a community to find the best solutions to issues which arise out of our new technologies with regard to those protections. But we should not stifle innovation and improvement through overly broad restrictions on the creation of products and ideas.