The last time I watched Shark Tank, I remember the five hosts shooting down an excellent pitch because the entrepreneur failed in one, and only one, regard: he didn’t have a patent for his invention. To these celebrity investors, patents are worth their weight in gold, and the bold entrepreneur from that week’s episode must have had some nerve to pitch his idea without first securing a patent.
Generally, the pitches on this show don’t deal with software concepts, but it made me think about the true benefits of patents, trademarks, and other kinds of intellectual property. For many industries, I’m sure a patent is (and will remain) a prerequisite for bringing new ideas to market – but in the software industry, I don’t think this is always the case. Software and technology evolve rapidly, perhaps more so than any other industry (in part because of a lack of barriers to entry, such as professional certifications and legal oversight), and many new ideas are simply iterations of a recent invention (consider Apple’s “revolutionary” graphical user interface on its first Mac computers – an idea taken directly from Xerox).
With this rapid iteration of software, then, intellectual property can inhibit innovation in one of two ways. First, the lengthy patent process introduces an obstacle into pushing code to production (if a company wishes to patent a new operating system design, such as the Xerox GUI that Apple adopted in the 1980s, it must invest time and money into the patent process and await a final determination from the patent office). Second, and perhaps even more problematic, a clever legal team could buy intellectual property rights to a similar (but previously unpatented) idea and block the release of a competitor’s product. In this situation, the “patent troll” encourages the use of intellectual property not to protect new ideas but rather as a method of blocking iterative development.
As an alternative, the software development industry could embrace non-proprietary software distribution, to a greater extent – either through free software licenses or open-source development. In fact, I think the prevalence and widespread adoption of open-source software in recent years suggests these sorts of proprietary licenses are not, and do not have to be, the only solution – rather, society can and will continue to innovate without the incentives provided by intellectual property and its protections. While proponents of proprietary technology might point to incidents like the Heartbleed bug (in which several vulnerable OpenSSL releases allowed attackers to intercept sensitive web traffic) as evidence for the necessity of intellectual property, proprietary technologies suffer from the same sorts of issues – patents, trademarks and other types of intellectual property don’t ensure products are any more stable than open-source projects.
The software industry is drastically different than many other industries considering its reliance on iterative development in a largely unregulated environment; in such a rapidly changing industry, I think patents and other forms of intellectual property actually do more harm than good. We’re seeing companies embrace open-source development to a greater extent than ever before (Microsoft purchasing GitHub several years back is a great example), perhaps recognizing that other revenue streams exist in a successful software company – revenue streams that actively encourage innovation not by stifling the competition with intellectual property rights, but by taking advantage of a larger network of ideas through open-source development to continuously innovate and iterate. Here’s to hoping this trend continues.