My Stance On APIs And Patents
27 Jan 2016
My post the other day on the hypermedia API focused patents from ElasticPath, has resulted in some very interesting conversations, with folks trying to understand this world, to those who are patent believers, and those who are just doing what they have to--in a world they do not control. This is why I write these stories, and frankly, it is why I am looking to push the patent conversation to new levels, to bring all y'all out of the woodwork.
In a collective response to these conversations, I wanted to share my stance on patents, when it comes to the world of APIs. Let's start closer to the median, and talk about patents, and the world that "exists today", and explore the common responses when you look to discuss API patents in the current climate.
I Do Not Want To Do Patents, I Only Do Them As a Defensive Response!
C'mon Kin! You do not understand why we have to do patents. We only do them to protect our space, against the worst, of the worst in the tech space--you know SAP, Sun, Oracle, Microsoft, IBM, and the other evil that lurk (the ones with most patents). I get it. It is the same reason all my redneck, and now hippie friends own guns--those over there have guns, and I need to defend myself. You never know when one of those situations will happen, and I will need to defend what I've invested so much to build.
I Need To Generate Intellectual Property (IP), Because It Is How We Define Value!
If I could spend my time as I wish, I wouldn't be writing up patents, and spending money on the patent process. My investors, CEO, and my wider stakeholder's expect that, as a startup, I patent the most valuable of the exhaust from our operations. Ok. So you do this because the people who give you money tell you to? Or do you do this because it actually defines the value you generate as a startup? So, as a startup in 2015, a process acknowledged in ancient Greece, and evolved after the dark ages, and further refined in the industrial age, define you? Ok. #DisruptionW00T!
Patents Are How You Make Money, Do You Know How Much Money IBM, Microsoft, SAP and Others Make?
The amount of money the large enterprise make off their patent portfolios is in the BILLIONS! This is how business gets done, and fortunes are made! This is how the leading companies that we hold up as shining examples make their billions, so why wouldn't I follow in their footsteps? Well, you know, all that disruption, innovation, and other bullshit you hear--that is why! Actually its not, but I'm just trying to use your own marketing against you, to try and change your tune.
Let's Start With The Basic Differences Between Your View, And My View Of The Space
The concept of the patent process is about taking a unique and innovative process, locking it up, and preventing others from doing it. Which in a capitalist, physical world might make some sense, some of the time, but in a digital world it actually works against the way things actually operate--where reuse, interoperability, and global access is how you reach a wider audience, encourage ubiquitous integration, and yes make money (open source duh?). Locking things up, preventing others from using a successful pattern, and metering that usage doesn't get you as far in this digital world, as it did in the physical world of manufacturing and distribution. #Sorry
In conflict with your world of patents, I am in the business of opening things up, reducing friction, increasingly interoperability, educating more people, and making things work together. I like to make money, but in the end, I'm more in the business of making you money, than I am about making money--you just do not realize it. You are are so short sighted in your view of business, that you do not get what API is. You think SOA didn't work because of some technical flaw, and ignore the role your heavy hand has played in gumming up the gears. Only now are you noticing that API is even working, and you know what? It has nothing to do with you. It has been working because of your absence, and now that your heavy hand has come into play, trust me, shit will slow down. #GiveItTime
The Patent Process Is Broken And Few Actually Care (Or Willing To Talk)
The biggest thing that bothers me in taking my patent stance, and challenging the larger world of patents, is that the process is broken, and that many know, few care, and even fewer are willing to talk about it. Let's start with the basics, in that a process developed in the physical world, applied to physical processes, is transferable to the digital world with no adjustments. WTF! You will argue that taking an existing patent applied in the physical world, reapplied to web or mobile is now worthy of a new patent, but the patent process itself doesn't warrant the same response? WTF! #Broken. We could leave it there, but wait, there is more!
The US Patent Office Is Underfunded, Undertrained, And OverWhelmed With Demand
When you take the time to look through the work that goes into looking for prior works, you realize how little actually goes into the overall patent vetting process. Its less about invalidating an idea for a patent, than it is about make sure it gets approved. The USPTO is just one casualty in a larger war to defund the United States government, and part of the beautiful gift the 1% receives in waging this war. This the how power works. Weaken the process, defund the regulators, and give the power to those who own the patent. You are either smart and innovating, or you are a loser right? #VoteTrump
Patents Are A Rich Persons Game, Something The Rest Of Us Should Avoid
The patent game is for those with the resources, on the front-end and on the back-end. Do you have the time to carve out and define your patent, hire a lawyer to write and file your patent? Do you have the time to wait for the USPTO to approve your patent? Are you filing your patent, or is the company you work for filing the patent? You do!! Now do you have the time, and resources to defend your patent, upon attack by your enemies, in a court of law? A sustained attack? This is the two-sided beauty of how patents are a rich person game. You have to have what it takes to gneerate patents to please your VCs, and to defend against your perceived enemies, but do you also have what it takes to defend in the real world, in a court of law? I do not. Even if I could afford to patent my unique process on patenting APis, I couldn't litigate it ;-)
Nobody Wants To Talk About Patents, Because Someday I Need Funding, Or Will Be In The Club
Blogs like Techcrunch love to do gotcha stories, when it helps the cause of the powers that pull their strings, and similar publications will call foul when really scary patent related cases enters the legal system, but patent filing, and approved applications, in even the scariest of ways rarely make the news. As a patent filer or owner, you rarely talk about your patent portfolio publicly, let alone feed this information to news outlets, and interestingly, very few organizations go looking for this information. Hmmmm....
Patent Conversations Happen Behind Closed Doors, Way Before They Ever Enter A Court Of Law
When I hear the statement that patents are being filed in a defensive posture, focusing in on the legal battles that will no doubt come in the future, from the most aggressive in the space--I hear the passive aggressive tones from the shadows (takes one to know one). This statement leaves out the posturing that takes place behind closed doors, between executives, and investors. Do not tell me your patent portfolio, or perceived patent portfolio (patent pending) doesn't give you leverage in every day dealings, never even bringing litigation into the picture.
Are Patents Sending The Signals You Think They Are In the Space
I just can't help but think that even though companies are playing the "patent game" by the rules, that they fully understand the signals they are sending. if I am watching the patent filings, and application approvals, and I know you are, don't you think your competition, and potential enemies are? Are you better off gaining a first mover advantage with your "unique process", or are you better off filing a patent for your process? IDK. I'm guessing this depends on how big your company is, and your general position in the space. Which means, I'm guessing it might not mean what you think it means for your little startup, and your view of the value vs. the view of your VC's might differ. Maybe it actually makes you a target for other types of bad behavior, and in the end, if necessary some actual patent litigation.
Patents Are Like Guns, I'm Doing Them Because Everyone Else Is Doing Them
Each time I listened to the stories of why my friends are doing patents over the last week, I think about the same stories I mentioned above from friends on why they have guns. Only difference is I have a long history with guns (love em), and not so much with patents. My friends have guns, because there are many other bad guys out there with guns, creating this really amazingly hostile environment, where nobody is safe. As a former thug, guess where you go rob when you see yourself as top tog in a market? You go rob the guys with all the guns, who might not have the resources to actually defend them. Guns have enjoyed much more "need" in the past, much like patents, but in the current climate we live in, we need to reassess their role, not do away with them, just take another look at the process involved--we should do the same with patents.
Patent Trolls Is Just The Illness Coming To the Surface Of Tech Space
The reason patent trolls can exist in this environment, is because of the buy / sell nature of companies, the scale at which the USPTO is equipped, government downsized, and coming down to who can actually afford the lawyers in the on-boarding, as well as offensive or defensive portion of the long patent game. If you have ever seen patent litigation play out, you know such a small portion of it is ever public, so what we hear publicly about the problem, is a very small piece of what is going on. This is just the part that plays out in the courtroom, and NEVER touches on what happens in the boardrooms of leading tech companies, or the investors behind the curtain.
Now We Get To The Part Where You Actually Hear My Stance On The Patents As They Apply To APIs
The concept of patent is broken, and the process that is patent is broken. For this reason I do not believe in it. Then you add the fact that it is a rich persons game, seals the deal for me. I cannot afford a patent, even if I wanted to, something that makes it an agent of power in my world. Something that also makes it such a hypocritical tell for startups. Why don't you push out press releases on your patents, that your VC's require you do? Alongside all of the innovation and disruption press releases? Oh yeah, we are using this really old process of the existing power structure. That is right, we aren't actually that proud of our patents--unless we work for IBM.
I Cannot Support This Concept Moving Forward If Nobody Will Stand Up And Fight To Evolve It
As a startup you will dismiss history, so that you can disrupt, find your funding, and convince all of us that your thing, is a thing. Government, banks, unions, institutions, and other entrenched entities are bad, and need disrupting in a digital era, but this centuries old process of locking of business processes, developing intellectual property, and building wealth portfolio deserves NO CHANGE in a digital age? WTF? Are you serious? The same concept applied to the cotton gin, applies to my cotton gin API? Don't even think about it, I've already applied for the patent! ;-) Sorry, I'm just not sold.
I understand why you are doing this, and I will keep accepting your requests to talk about, because I learn a lot along the way, and it is something that continues to anchor me in my stance. You will look to quickly dismiss me because I am not "playing in your league", and I don't understand the stakes, and the rules of the game. #Truth. I would also challenge that maybe you are so caught up in the stakes and rules of your game, you might be missing some opportunity, and potentially a whole other way of operating--one that actually makes all of this work, and less about you getting rich.