Marco Arment has an excellent post on Twitter’s “Innovator’s Patent Agreement”. The gist: excellent PR move, but doesn’t change anything legally. Sounds right to me. But what caught my attention was a footnote:
Many Instapaper ideas might have been patentable […] I didn’t patent the older inventions because I couldn’t afford to. I probably could have patented some of the newer ones, but I didn’t even look into it enough to do basic prior-art searches. I fundamentally disagree that software patents (and many other types of patents) are a net gain for society, and I can’t participate in that system in good conscience. That’s a stand that I’d like to see more companies adopt.
I don’t get this. By not taking action, you are still exerting an effect on the current system. Namely, it’s now possible for some troll to patent the various Instapaper innovations and sue other developers. Sure, those patents may get invalidated due to prior art. But as we know, that takes time, and often in the face of legal uncertainty, small developers settle. So, by saving your conscience, you’re effectively enabling the patent trolls via inaction.
Here is an alternative. Why not patent everything you can and donate it to, say, EFF? It’ll achieve the practical effect of putting the innovation in the public domain. I think Larry Lessig would be happy with that. (And perhaps EFF should reimburse innovators for the legal fees involved in getting a patent.)