Wed 18 Apr 2012 07:42:19 AM PDT
Two million lawyers?
To really find all the software patents you need to license, and license them, you'd need to spend more on lawyers than on the rest of your software development operation combined.
The one thing that's been bugging me about the Lee and Mulligan paper, Scaling the Patent System, is: Intellectual Ventures founder Nathan Myhrvold, who has been filing for and acquiring software patents at a tremendous rate, must know this. He's a mathematician and has been working with patent lawyers for a long time. He can't not understand the transaction costs of researching patents and negotiating licenses. Lee and Mulligan have done good research and written down some important insights on software patents for the rest of us, but none of it is going to be news to Myhrvold.
So if he's actually mathematically literate but doing this anyway, what's the real plan?
All that I can think of is that it has to be something like ASCAP for software patents. If you run a restaurant and have music, either live or recorded, you have to pay ASCAP, or the other performance rights organization, BMI, for a license. You don't have to track royalties to individual composers. ASCAP splits up its royalty stream, according to its own formula, and you're covered.
For software patents, you'd face something similar. You have five programmers? That'll be 20 grand a head, plus a 5% royalty on products and a 2.5% royalty on services. No fuss, no patent infringement lawsuits, and if you join now, we'll pay most of that back to you in generous royalties on your own patents.
There are already examples at a smaller scale. If you run Android or Samba, you can pay for a blanket licensing agreement from Microsoft, covering a large number of the company's patents. And of course you can pay the MPEG LA for a license to a pool of essential codec patents. Where this plan is different is in thinking big. All software, by anyone, under a easy-to-administer license. Easy as putting an ASCAP sticker on your door and hitting "play".
Sure, paid-up programmers would get an e-book subscription, a hat, and a messenger bag, but ultimately Myhrvold is on track to bring back, for computer programmers, the guilds or "corporations" of craftsmen that got such bad press in Adam Smith's The Wealth of Nations. But let the current patent wars get a little louder and more ridiculous, and CIOs and CTOs will be thankful for the prospect of an orderly system.
The funny thing is that most programmers above a basic skill level will probably earn more this way—if the paid-up license became a requirement of coding for a living, you'd be competing against fewer marginal programmers and wannabes.