Microsoft was once right on patents (but now terribly wrong)

Timothy Lee writes a compelling argument against software patents in the New York Times today. It’s the very same argument that Bill Gates advanced back in 1991 against software patents, but now has done a complete about-face. As Lee writes:

[I]n recent years, [Microsoft] has argued that patents are essential to technological breakthroughs in software.

Microsoft sang a very different tune in 1991. In a memo to his senior executives, Bill Gates wrote, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.”

Mr. Gates wrote his 1991 memo shortly after the courts began allowing patents on software in the 1980s. At the time Microsoft was a growing company challenging entrenched incumbents like I.B.M. and Novell. It had only eight patents to its name. Recognizing the threat to his company, Mr. Gates initiated an aggressive patenting program. Today Microsoft holds more than 6,000 patents.

It’s not surprising that Microsoft — now an entrenched incumbent — has had a change of heart. But Mr. Gates was right in 1991: patents are bad for the software industry.

Ah, hypocrisy, thy name is Microsoft. If only Microsofties were made to swallow the bilious hypocrisy they spew….

Part of the problem, however, is that once Pandora’s patent box was opened, everyone was forced to patent to keep up. Patent silly things. Patent anything. I remember a presentation then Novell vice chairman Chris Stone delivered at the Hard Disk Cafe in Provo back in 2002. He said, much as Gates had before him, that Novell needed to secure more patents and even set a goal as to how many each quarter the company would amass (though I can’t remember how many it was).

Why? Not because Stone was a patent troll, but because the patents could be used as defensive bargaining chips. It’s Mutually Assured Destruction all over again, but this time with intellectual property, not nuclear bombs.

The only way I can see out of this is to continue to patent, but to grant them to organizations like the Open Invention Network. In other words, secure patents for everyone’s security, and not solely that of any particular firm. Create a patent commons where people can innovate without worrying about land mines.

Interestingly, though, having patents isn’t a prerequisite to prosperity. As Lee points out in his article, Microsoft made most of its billions well before it had the patents to scare others away. How? By making software that solved problems for consumers and businesses.

Imagine that.