A friend sent me, along with a number of others, an article on the Apple-Samsung lawsuit. I haven’t commented on the trial here because I see it as a sideshow, one that means very little in the grand scheme of things. But one place where I think it means a lot is in the realm of software patents. My comment back to the crowd was this:

It’s not a loss for the American consumer, as Samsung said. Think they will vacate the market? Ha!

What it is is a reaffirmation of the supremacy of the patent system, which is bad news for every small company.

I was asked to explain. Here it is:

When I talk, I am talking specifically from a software perspective. None of what I say here applies to biotech, hardware, pharmaceuticals, or any other business with real costs to manufacture or huge up-front expense to get it to market.

First, patents do not lead to innovation. In fact, I would argue that patents cause a dearth of (again, software) innovation. Software is always built in layers. One guy’s idea is used to generate the next set of ideas, of which the next guy builds on. Interested in Twitter? What if SMS had been patented. Or instant messaging. You’d never had seen it. How about Facebook? What if News Corp had patented the timeline for MySpace. There is very little invention in the software space. Almost all has some lineage to something that came before, physical or otherwise.

Okay, so I filed for a patent this year on some stuff we are working on. When my lawyer did a review he found two patents that were in a similar area, both by Microsoft. He felt we were fine and had more than sufficient distance from their patents. But all the same. Let’s say we release our app and Microsoft decides we infringe and comes after us. It makes no difference how strong my patents are. The case would never make it to court. After all Microsoft pays each of their lawyers more per year than my whole company makes. They could lawyer me to death.

What if my lawyer had decided that our technology was too close to Microsoft’s? Maybe I would have bailed on the project instead of risking Microsoft’s wrath. These are patents that Microsoft is not using, they are just sitting on them. That means my innovative and potentially world-changing product would never have been developed because the threat was too great? How is that helping innovation?

Big companies hold all the patent chips. Big companies act as trolls against little companies, they have the muscle to force us into compromising positions. As with almost everything else in this country now, the little guy can’t win this fight. Software patents need to go.