Toward a Better Patent System

Another topic that I have written a lot about here on Continuations are patents and in particular software patents. While there is a lot of reform that I would love to see I have also come to appreciate that sometimes the only way to get there is in small steps. One relatively meaningful step was just introduced by Senator Schumer. The basic idea is to allow for a much fast tracked review of many of the suspect business process patents used by patent trolls to sue startups and larger tech companies. Because of changes in the interpretation of patent law many of these fast track reviews have a good shot at invalidating the patents. For a more detailed comment on this proposal, please read Nick Grossman’s post over at USV.

Republic, Lost and United

Yesterday saw the beginning of a massive effort across a large number of Internet companies to help stop PIPA/SOPA legislation.  While that is an important fight it is worth asking - can we afford to fight bad bills one at  a time?  Why do we even wind up with terrible bills like this in the first place?  In his new book “Republic, Lost” Larry Lessig accumulates an impressive amount of evidence pointing to the corrupting influence of money on politics.  Everyone who cares about the future — whether Democrat or Republican — should absolutely buy and read this book! This is not a partisan work.  Lessig goes out of his way to show how special interest lobbying and campaign funding is undermining all agendas and has fundamentally shifted the dependency of congress away from the people and towards the money.

A quick word of warning to the prospective reader: the book has a bit of a structural problem in that Lessig starts with a detailed investigation of the influence of money that is laboring hard to distinguish quid-pro-quo corruption (I give you money to pass this specific bill) from the corruption of lobbying and campaign finance that is pervasive but much more diffuse and hence harder to detect and fight.  In these early chapters Lessig sometimes piles on too many facts and “sells past the close.”  Don’t give up and make sure you get to the chapters that speak to how this corruption affects both the left and the right and more importantly what to do about it.  There Lessig shifts into a powerfully emotional passage about why we should not give up the fight for a republic in the spirit of the framers, i.e. a republic where government depends on the people and not on those with money.  It would have been great to have some of that energy at the beginning of the book to carry readers through the early chapters.

Republic, Lost doesn’t just dwell on the problems though it proposes a solution based on limiting the size of contributions and making it possible for everyone to contribute.  More importantly though, Lessig also proposes three complementary strategies for how to get Congress to adopt such far reaching campaign reform, when doing so is not in the interest of the majority of politicians and virtually all lobbyists.  I am especially intrigued by the strategy of a constitutional convention because I believe it could garner very broad support that would encompass Occupy Wall Street and the Tea Party.

The possibility of a Constitutional Convention is not the only reason that I came away feeling energized after reading Republic, Lost.  The other is that Larry Lessig has a strong track record of not just writing about things but making them better.  Thanks to Lessig we have the now widely used Creative Commons license framework.  And he is already at it again with not just a book but also efforts such as CallAConvention, Rootstrikers, and UnitedRepublic.  I especially like the name of the latter as we will only overcome this fundamental obstacle if we can build a united effort that is singularly focused.

P.S. I just saw that Lessig wrote an OpEd piece in the NY Times today.  If you need more motivation for buying and reading Republic, Lost - read the OpEd first which sets out the campaign finance reform proposal!

Software Patents Need To Go

My partner Brad put up a great post on the USV blog yesterday, arguing for an independent invention defense against software patents.  A while back, I had proposed an alternative, a change in how litigation works.  In that post, I wrote that:

Some folks have suggested doing away with software patents altogether as a way of addressing this problem.  That strikes me as too dramatic a solution as I don’t believe that all software patents are evil.  For instance, if someone were to spend years and lots of money to develop a new and improved way of recognizing images then it is not clear to me why that is less worthy of patent protection than say a new machine or a new drug.

I have since then changed my view of that.  After a lot of digging into what has been patented over the years in software, I am now convinced that neither a change to litigation nor an independent invention defense are sufficient.

Instead we need to hit the restart button by invalidating software patents wholesale and either not allowing them going forward or only in some incredibly restrictive form.  That now puts me firmly in the camp of Brad Feld, who has a post today supporting Brad’s effort and trying to rally more investor support for fundamental reform.

Running around a lot at the moment, so expect a longer post in the future detailing the process of my conversion!

Will The Center Hold?

I still follow German politics a bit, if for no other reason than talking to my parents and friends who live there.  But right now there are interesting things happening there that are relevant to US politics.  Germany has federal elections coming up on September 27 and had state elections in three states last week.  The state elections showed a fascinating split with two smaller parties, “The Left” (“Die Linke” and the “Free Democratic Party” (“FDP”), scoring major gains.  The Left is a combination of a reconstituted party from the former East Germany with a splinter group from the SPD (which is Germany’s center-left party and closest to the Democrats in the US).  The FDP is a party that favors free market economics but tends to be liberal on social issues as well (there is no obvious equivalent in the US — the libertarians probably come closest).

What makes this interesting is that these two parties line up fairly well with two groups in society that are impacted very differently by the economic changes that we are facing.  The Left represents primarily workers in traditional industries who are facing layoffs and folks who are already unemployed.  The FDP, by contrast, represents primarily entrepeneurs, managers and employees at high growth businesses.  With five separate parties in Germany (at the national level) this economic rift in society is more easily detected in the electoral results than here in the US. The net outcome appears to be a situation where there are not enough votes in the center to achieve reform and where the extremes will block each other.

In a two party system, such as the US, the economic condition and its impact on voting is obscured by other issues (in the US these are primarily social/cultural issues).  Still the influence of the economic forces at work appears to be part of what is driving the difficulties over healthcare reform.  My fear is that as time goes on, the gap between those benefitting from the fundamental economic changes we are epxeriencing and those suffering from the same changes will grow so large as to make it very difficult to have a center that can accomplish meaningful changes.