From the trenches: on tech analysts and software patents
August 28, 2011 Leave a comment
On analyzing technology
One of the most destructive messages our culture broadcasts is that proposed solutions that cannot be reduced to 140 characters shouldn’t move forward. If that policy were enforced in decades past, most of the important technology companies wouldn’t exist today. Concepts can be compressed, but that doesn’t necessarily mean they will be understood. Most of the simple problems were solved long ago. Unfortunately, very few are capable of understanding complex solutions prior to a polished end product, including the world’s leading analysts who passed on most of the big wins early on. So if we intend to move forward as a species, we better craft a new policy and improve methods for developing solutions to the actual complex problems we face. My advice to other founders has long-been to ignore the noise, focus, and do your best to attract employees, partners, customers, and investors who have done their homework and have the capacity; much easier said than done with next gen tech across the ever expanding valley of death.
Most analysts who have studied Kyield, reported on it, and/or attempted to label our work were not prepared for the task and could therefore not be in a position to grasp it. This was not entirely unintentional on my part as I learned the hard way long ago to withhold enough information to make reverse engineering difficult. While many are familiar with the potential benefits of exposing and promoting trade craft and IP, few are aware of the risks involved, and those tend to be the ones we need to be concerned with as they are often employed by giant competitors in one form or another. The world has changed; the biggest threat to incumbents are start-ups with ground breaking technology and/or strong innovation, and as we’ve seen in many cases– almost any tactic is employed when enough power or money is at stake. This is obviously a serious problem for anyone who must divulge sufficient information in order to build products, and by extension everyone who depends on a dynamic and diversified economy.
I’ve been waiting on standards to mature since the mid 1990s and on the patent application process since April of 2006. Both systems are dysfunctional as they are manipulated (largely by exploiting weaknesses) by mature incumbents who are threatened by invention and innovation. That doesn’t mean, however, that we need less protection for original creative work, rather that we need more protection, of a different type, and much improved.
IP theft and copying of original work products is an enormous problem that is doing massive damage to our economy today, which is unfortunately largely invisible to the super majority of citizens. The IT industry has frankly been an enabler both in choices on architecture and in attempting to manipulate the legal and political system (often with great success). The IP challenge is symptomatic of structural challenges in the U.S., and increasingly related to economic deficits, education, and healthcare. The incumbents and gatekeepers who have de facto veto power through the political process, legal system, and technology are often threatened by any actual improvement to the system, so they tend to be extremely proactive in their defensive tactics, representing a classic negative spiral to broader society. IT has been commoditized across the world in systems we all use and innovation has been severely curtailed, with very little ability for most to establish differentiation, which is essential for survival in a market economy. This situation directly impacts every major challenge facing our world today.
Some software companies, software developers, venture capitalists, and academics have publicly denounced intellectual property rights for software and processes. While each of the common arguments have valid points, we don’t see many independent inventors claiming they need zero protection, and they are the stakeholders who matter in this debate–for the future of everyone else. I suspect that large numbers of authentic creators have simply opted out due to the lack of protection and justice–I have heard from many creative inventors and engineers through the years who are otherwise employed.
I agree that we need foundational reform in IP, part of which is reflected in Kyield, but I see a much higher probability of technical innovation providing solutions to these challenges than our current political system. Indeed, with the current state of our political system, the primary risk is that legislation surviving the dysfunctional process tends to compound challenges for small, independent inventors, as small and micro entities have lost power in our political system. Those arguing against patents seem to be missing two crucial points:
No other viable option currently exists to protect original work beyond encryption with specific apps, while most of our challenges are systemic
Software is increasingly the primary medium to affect and deliver improvements in our society and global economy
I too almost gave up on the patent system–it has been among the most frustrating experiences of my life, both in dealing with the system itself and the byproducts created by a failing IP/legal/political system. Any system that averages many millions of dollars to defend a patent no longer serves individual inventors, obviously. However, I came to the conclusion that as dysfunctional as our patent, legal, and political systems are, the probabilities of real reforms surviving are substantially enhanced with patent protection as it is unlikely that any of the other models for reform will work, quite a few of which have now been tested. We obviously need a new IP system that is based on sound technical infrastructure with properly aligned incentives and protection for the individual inventor. Our Kyield system represents a substantial leap forward in the right direction, but it’s only a cornerstone in the foundation (for IP in society-it is a holistic knowledge system).
The chief obstacle to real improvement is that technical gatekeepers are also patent trolls who are threatened by improvements to the system. All decision makers need to think long and hard about this situation, not least of whom are those focused on internal defense instead of solving the problems of others. Eventually this deteriorating situation will have negative consequences for everyone. The most obvious immediate threat is a stagnating global economy. With global market power comes global responsibility. The IT industry has a lot of maturing to do before it can live up to its responsibility in the global economy, as do both developed and developing governments.
I have studied the topic of IP systems in detail with the various hats of a citizen, entrepreneur, consultant, incubator operator, venture capitalist and inventor. I see no viable, sustainable alternative to a functional personal property rights governance structure.