August 2011  
  
I realized recently that we may be able to solve part of the patent problem
without waiting for the government.  
  
I've never been 100% sure whether patents help or hinder technological
progress. When I was a kid I thought they helped. I thought they protected
inventors from having their ideas stolen by big companies. Maybe that was
truer in the past, when more things were physical. But regardless of whether
patents are in general a good thing, there do seem to be bad ways of using
them. And since bad uses of patents seem to be increasing, there is an
increasing call for patent reform.  
  
The problem with patent reform is that it has to go through the government.
That tends to be slow. But recently I realized we can also attack the problem
downstream. As well as pinching off the stream of patents at the point where
they're issued, we may in some cases be able to pinch it off at the point
where they're used.  
  
One way of using patents that clearly does not encourage innovation is when
established companies with bad products use patents to suppress small
competitors with good products. This is the type of abuse we may be able to
decrease without having to go through the government.  
  
The way to do it is to get the companies that are above pulling this sort of
trick to pledge publicly not to. Then the ones that won't make such a pledge
will be very conspicuous. Potential employees won't want to work for them. And
investors, too, will be able to see that they're the sort of company that
competes by litigation rather than by making good products.  
  
Here's the pledge:

> No first use of software patents against companies with less than 25 people.

I've deliberately traded precision for brevity. The patent pledge is not
legally binding. It's like Google's "Don't be evil." They don't define what
evil is, but by publicly saying that, they're saying they're willing to be
held to a standard that, say, Altria is not. And though constraining, "Don't
be evil" has been good for Google. Technology companies win by attracting the
most productive people, and the most productive people are attracted to
employers who hold themselves to a higher standard than the law requires. [1]  
  
The patent pledge is in effect a narrower but open source "Don't be evil." I
encourage every technology company to adopt it. If you want to help fix
patents, encourage your employer to.  
  
Already most technology companies wouldn't sink to using patents on startups.
You don't see Google or Facebook suing startups for patent infringement. They
don't need to. So for the better technology companies, the patent pledge
requires no change in behavior. They're just promising to do what they'd do
anyway. And when all the companies that won't use patents on startups have
said so, the holdouts will be very conspicuous.  
  
The patent pledge doesn't fix every problem with patents. It won't stop patent
trolls, for example; they're already pariahs. But the problem the patent
pledge does fix may be more serious than the problem of patent trolls. Patent
trolls are just parasites. A clumsy parasite may occasionally kill the host,
but that's not its goal. Whereas companies that sue startups for patent
infringement generally do it with explicit goal of keeping their product off
the market.  
  
Companies that use patents on startups are attacking innovation at the root.
Now there's something any individual can do about this problem, without
waiting for the government: ask companies where they stand.  
  
  
  
[Patent Pledge Site](http://thepatentpledge.org)  
  
  
  
**Notes:**  
  
[1] Because the pledge is deliberately vague, we're going to need common sense
when intepreting it. And even more vice versa: the pledge is vague in order to
make people use common sense when interpreting it.  
  
So for example I've deliberately avoided saying whether the 25 people have to
be employees, or whether contractors count too. If a company has to split
hairs that fine about whether a suit would violate the patent pledge, it's
probably still a dick move.  
  

