The Patent Pledge

August 2011

I realized recently that we may be able to solve part of the patent
problem without waiting for the government.

I've never been 100% sure whether patents help or hinder technological
progress. When I was a kid I thought they helped. I thought they
protected 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, there
do seem to be bad ways of using them. And since bad uses of patents
seem to be increasing, there is an increasing call for patent reform.

The problem with patent reform is that it has to go through the
government. That tends to be slow. But recently I realized we can
also attack the problem downstream. As well as pinching off the
stream of patents at the point where they're issued, we may in some
cases be able to pinch it off at the point where they're used.

One way of using patents that clearly does not encourage innovation
is when established companies with bad products use patents to
suppress small competitors with good products. This is the type
of abuse we may be able to decrease without having to go through
the government.

The way to do it is to get the companies that are above pulling
this sort of trick to pledge publicly not to. Then the ones that
won't make such a pledge will be very conspicuous. Potential
employees won't want to work for them. And investors, too, will
be able to see that they're the sort of company that competes by
litigation 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 pledge
is not legally binding. It's like Google's "Don't be evil." They
don't define what evil is, but by publicly saying that, they're
saying they're willing to be held to a standard that, say, Altria
is not. And though constraining, "Don't be evil" has been good for
Google. Technology companies win by attracting the most productive
people, and the most productive people are attracted to employers
who hold themselves to a higher standard than the law requires.
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