Here’s a question: what do you do after you’ve made it? I don’t mean had a couple of wins and put a few bucks in the bank. I mean absolutely, unequivocally, ball-out-of-the-park made it? Dr. Nathan Myhrvold, the former Chief Technology Officer at Microsoft, has definitely made it. He leveraged his massive intellect and first-class education into a career at the hottest startup of his era, and in the process made hundreds of millions of dollars, at least. So what do you do after you’re done with game seven of the series and emerge the big winner?
For Myhrvold’s former boss Bill Gates, his friend Warren Buffet, and many other very wealthy individuals, the answer has been philanthropy. For some, like Steve Jobs, it’s a second turn at the reigns of the horse you rode across the finish line in the first race. Others are serial entrepreneurs. Not a few have embraced the greatest challenges of our time. Paul Allen and Elon Musk build spaceships. For many of the newest mega winners, such as Mark Zuckerberg, the question remains to be answered. What about Dr. Myhrvold?
According to a recent investigative piece by NPR, the answer appears to be, at least in part: buy up a huge number of patents and go fishing for dollars. Myhrvold’s company Intellectual Ventures was ostensibly founded to be an incubator for innovation, and indeed it is involved in a lot of interesting projects, many a good bit more relevant to humanity than the world’s most expensive cookbook. The company holds around 1,000 patents on original work, which is pretty damn impressive. On the other hand it has purchased over 30,000 patents for it’s portfolio, and has allied with a shadowy network of employee-less patent trolls (many located in the same building full of empty offices in the Texas town of Marshall) to monetize those intellectual properties through the usual mechanism of threatened litigation.
I don’t need to address here whether software patents are a good or bad thing in themselves. I instinctively don’t like them, but on the other hand I’m a believer in the idea that software is analogous to machinery. If it’s machinery, then why shouldn’t it be patentable, as machines have long been? The question is troubling to me, but it is deserving of its own debate. The issue here is not whether software patents are right or wrong, but rather that the process by which they are currently granted is completely broken. There are patent trolls out there right now suing for license fees on ideas as basic as popping up a tooltip when the mouse is moved over a rectangular area of the screen. The NPR piece talks about a guy who literally has a patent on just about everything everyone does online. Myhrvold’s company used to own it.
It doesn’t take a genius with a doctorate to know that the system is broken, and that patent examiners are unable to accurately judge prior art, or whether what they are seeing is really a unique design for a new machine or process. My own work has been cited in five granted software patents. The articles cited in the patents were all written back in the nineties for journals like Computer Language and Dr. Dobb’s. There’s not one line of original work in any of them. I wasn’t doing original work. I was summarizing technologies for readers who wanted to understand them. I didn’t discover or invent anything, or lay the foundations for anything to be discovered or invented. So what is my work doing in patent disclosures?
That’s the problem, and it’s why I was disappointed to read what Intellectual Ventures has been up to. I have long been an admirer of Dr. Myhrvold, albeit one who will never spend $600+ for his cookbook. I have heard him speak, and read what he’s written, and I don’t believe he can convince himself that the actions of his company are encouraging innovation, or supporting the efforts of small inventors. They certainly could do that. There’s nothing wrong with their model if it is pursued honestly. But they are trolling with a wide net, and catching too many of the wrong kinds of fish.
Patents were originally intended to encourage innovation by offering protected disclosure of methods and processes. Nothing is disclosed when a patent is granted on something basic like tooltips, or remote updating of software, because nothing needed to be disclosed. We all already know how to do those things, which is a pretty clear indicator of prior art. The effect of these patents is simply to erect private tollgates on well-traveled roads. Good software patents might be healthy, but bad software patents are definitely unhealthy, productive of a relationship more parasitic than nurturing. The NPR piece is conclusive, as far as I am concerned, with respect to Dr. Myhrvold’s participation in this business. That’s too bad. With his mind I have no doubt he could make himself another billion or two, and in a much more productive and satisfying way: by inventing something cool.