Marketing blog for Houston web marketing. Strategic marketing and sales promotions.

Sunday, October 11, 2009

response to noisychannel on patents

I’m taking too long to get to the point I’m trying to get to, so I’ll say it now briefly.

The practice of law in the United States is capitalistic; that is, whoever has more capital has more advantages. Legislation tends to be eventually distorted toward whoever can influence the legislators the most—so frequently it tends to be more capitalistic as well. Patent laws are less capitalistic than many if not most other commerce laws. The same startup person who complains about some laws suppressing him will be the suppressor when he ages and acquires capital. To change software patent laws “in practice”, ultimately means changing these societal characteristics, as I was eventually going to lead to with the examples on copyrights and trademarks.

A patent doesn’t stop anyone from making a product or service. A programmer can program all he wants. What the patent does is to stop the programmer from making money on the programming. The art of making money is the art of business. Just because someone has programming or inventing skills doesn’t mean he should “deserve” money. As you can see, the inventor has less than a 2% chance of making money.

Having said these, simply recognize that your friend is faced with a business problem, not a legislative or legalistic problem. The business problem is simply that a bully wants to use the law to beat him up. Assuming you are correct in the assessment that the bully-bluffer’s claims are overbroad or had prior-art—and neither you or I are lawyers--the solution is to stand up to the bully somehow. Of course, we need to be fair to both parties. Maybe the bully does have a point of view and of his numerous claims, some have merit.

The point is that he remains a business bully—and needs to dealt with in a business bully response way--in order that your friend becomes a better business person in order to reap the business benefits of money. The answers here are all kinds of non-obvious negotiations methods in dealing with bullies (maybe we can patent these? :) ). If your friend’s team can’t come up with solutions here, his startup won’t be a “kickass” anyhow, because there will be much tougher business problems coming up.

It’s unfortunate he’s a little unlucky and ran into an unusual business problem. But to be a successful business person, he should come up with a successful business answer. Additionally, did he do any prior art research before venturing?