Vuelta a la carga: patentes de software


Aprovechando la mañana de domingo he estado repasando el blog de Joi Ito hablando de las patentes de software:

I hear that arguments have been made that software patents are helpful for innovation and that venture businesses may in some way benefit from software patents. I can of course imagine cases where software patents might be helpful for startup companies, but from my personal experience, they are generally more of a burden on innovation at the venture level than a benefit.

Generally speaking, filing for patents is an expensive and time consuming task. Most startup CEOs don’t understand and can’t afford a patent strategy. I have done a number of calculations on the cost of filing and maintaining software patents, and one estimate we did for a company that I am working on was that it would cost about $750,000 to file and maintain a single patent in the major markets over the lifetime of the patent. Most companies I invest in raise only $1M or less their first round. In addition, to properly protect a technology and continuing developments around a technology, a portfolio of patents must be filed or you can be “surrounded” by application patents and derivatives filed by competitors. In away, filing a patent is practically like putting up an ad balloon for people to see where you are focusing.


For companies who are working in a patent riddled space, I definitely do a mental calculation of the added risk of litigation and subtract that value from the valuation of the company or decide to not invest at all. I’ve heard to software patents referred to as land-mines in this context. The problem is, big companies gobble up patent portfolios from bankrupt startups and then have teams of lawyers who use these to go after competition. There is a measurable chilling effect. (Note also that some of the technology oriented anti-file-sharing bills that have been proposed will have a similar effect.)

The only practical use of software patents that I have seen are defensive. Many Internet companies that I have worked with have one or a few broad software patents that they wield to threaten potential assailants. Typically, these company spend very little or no time trying to extract license fees from competitors, but just use the patent like some sort of legal scarecrow. Patents are supposed to be an incentive to innovate and this defensive use really is just a cost and does not serve to cause innovation.

Estoy de acuerdo en lo positivo del rechazo del Parlamento Europeo a tramitar patentes de software. Como desarrollador creo que la patente puede ser una solución, aunque también lo es la Ley de Propiedad Intelectual (LPI). Desde luego, lo que parece ridículo y fuera de lugar es crear patentes para cualquier cosa, porque eso supone que cada desarrollador debe pagar una tasa de patente por usar ese “trozo de código”. Puestos a ser finos, patentamos el “1” y el “0” y ya está: nos hacemos ricos sin más que cobrar tasas.

Para reflexionar.

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