Monday, April 10, 2006

Nathan Myhrvold: Champion of the Patent Troll

Nathan Myhrvold published an editorial in the Wall Street Journal, defending the status quo of the patent system. No reform is needed, he claims, because the only real problem is that there is too much patent infringement by companies commercializing technology.

This is no surprise coming from Myhrvold -- he's the CEO of Intellectual Ventures, a patent holding firm (aka, a patent troll). Myhrvold (and the company) claim that they are an "invention company," conceiving and patenting "our own inventions in-house through a world-renowned staff of internal and external scientists and engineers." Yet the truth is that their strategy is to purchase shady patents from failed companies and paper inventors, and then use them in a extortion game against larger players -- fitting the definition of 'troll' to a tee. For evidence of that, look at how they bid up the Commerce One XML patent portfolio to nearly $15 million, before Novell purchased and released the patents openly. If Intellectual Ventures would have been successful in acquiring those patents (no matter how illegitimate they were), you can be sure they would now be engaged in a massive shakedown of the entire Internet industry, where XML is almost as pervasive as HTTP.

To avoid turning this into an ad hominem attack, let's take a look at what Myhrvold has to say:
Tech companies ... win by muscling their way to sufficient market share to become a de facto standard (some would say monopoly). Because patents don't figure in this business model, tech companies don't hold the patent system in high regard.
Patents don't figure into a business model centered around gaining monopoly control of a market? Come again? Patents are nothing more than a government-backed monopoly.

It gets better:
Many of the largest tech companies have a standing policy that engineers are not allowed to read patents or check whether their work infringes. Why bother to look, if you know you'll find lots of infringement? Besides the cost, it's a distraction that might hurt time to market. Their strategy is simple -- damn the torpedoes, full speed ahead.
Here, Myhrvold is either disingenuous, or extremely naive. Having spent 15 years in leadership at Microsoft, I'd rule out Myhrvold being naive, so that leaves us with disingenuous. Engineers aren't encouraged to look at patents because 1) engineers aren't lawyers, 2) engineers are paid to do engineering, not to wade through patent thicket legalese, 3) software patent quality is extremely low, so finding a patent claim which might somehow be broadly applied to an engineer's current work means virtually nothing, and 4) software patents have undefined or unclear borders, so determining whether infringement has or might occur cannot realistically be determined.

Myhrvold also talks about how, yes, Microsoft had to fight off some bad patents, but that it wasn't a big deal because Microsoft eventually won those cases in court. Nevermind that smaller startups don't have the huge pile of cash that Microsoft does, and that any such suit against them is likely to result in the smaller player folding, and never mind that Microsoft doesn't agree on this point -- Myhrvold will assert these 'facts' as truth, and expect you to be swayed by them. I don't think you, gentle reader, are that dumb. But apparently Nathan Myhrvold does.


Anonymous Anonymous said...

Myhrvold knows what he talks about, unlike most of anti-patent crowd...

On several occasions I talked to MS people about my inventions and asked them if they read my patent (They were more than familiar with the stuff I invented from several techincal conferences).
Their answer was: "NO
We are not allowed to look at any outside patents..."
So I guess when they purposly infringe on my patent their attorneys will claim innocent accidental infringement, as opposed to willful infringement and associated triple damages.
Those honest corporate folks...

8:46 PM  
Anonymous Anonymous said...

Do you honestly expect Microsoft (or any software company) to tell their engineers to please spend at least 20 hours/week doing a careful examination of the 200,000 patents that are granted each year (plus a similar number going back each year to 1986)?

That's insane. Even if they spent their entire 40-50 hour workweek, they'd never get done.

Let the lawyers worry about this. That's why corporations have them.

Patents are all about lawyers, anyway, and not so much about inventing new things.

9:12 AM  
Blogger Jackson Lenford said...

Joel Spolsky spells it out clearer than I ever could:

"Programmers need a Subversion repository. Getting a Subversion repository means you need a network, and a server, which has to be bought, installed, backed up, and provisioned with uninterruptible power, and that server generates a lot of heat, which means it need to be in a room with an extra air conditioner, and that air conditioner needs access to the outside of the building, which means installing an 80 pound fan unit on the wall outside the building, which makes the building owners nervous, so they need to bring their engineer around, to negotiate where the air conditioner unit will go (decision: on the outside wall, up here on the 18th floor, at the most inconvenient place possible), and the building gets their lawyers involved, because we're going to have to sign away our firstborn to be allowed to do this, and then the air conditioning installer guys show up with rigging gear that wouldn't be out of place in a Barbie play-set, which makes our construction foreman nervous, and he doesn't allow them to climb out of the 18th floor window in a Mattel harness made out of 1/2" pink plastic, and somebody has to call the building agent again and see why the hell they suddenly realized, 12 weeks into a construction project, that another contract amendment is going to be needed for this damned air conditioner that they knew about before Christmas and they only just figured it out, and if your programmers even spend one minute thinking about this that's one minute too many.

"To the software developers on your team, this all needs to be abstracted away as typing svn commit on the command line.

"That's why you have management."

(full text here)

1:28 PM  

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