Clearing Space for Innovation

My Microsoft Watch colleague Joe Wilcox recently blogged about a Microsoft advertising campaign for its beginning developer-oriented Visual Studio Express Edition, in which a picture of a young Bill Gates sits beside a caption that reads, “Inspiration Starts Somewhere.”

However, in light of the patent troubles in which VOIP pioneer Vonage now finds itself, it seems to me that for tomorrow’s tech entrepreneurs, a more important concern than where their inspiration is going to start is where and how their business aspirations might be cut short.

Vonage faces potential bankruptcy following the patent lawsuit defeat recently dealt to it by telephone services incumbent Verizon, and considering how liberally the United States Patent and Trademark Office hands out monopolies over the basic ideas on which upstarts such as Vonage build their businesses, Vonage certainly won’t be the last business innovator to find itself so endangered.

As with so many software and business method patents that grab industry headlines, the patents that Baby Bell Verizon is wielding against Vonage have an odor of obviousness. Today’s Internet was born in the context of our telephone networks, so there was nothing particularly earthshaking about adapting voice traffic to flow from the circuit-switched networks of classic telephony to the packet-switched networks of what would become the Internet. Indeed, today’s VOIP technology is rooted in the Network Voice Protocol first implemented in 1973.

Obvious odors aside, I’m not qualified to hand down a ruling on the validity of Verizon’s patents, and I don’t believe it’s much worth debating the issue, anyway. Even if Verizon’s claims are overbroad and fall afoul of the constitutional mandate “to promote the progress of science and useful arts” from which patent laws draw their authority, I have little faith that the lawmakers, judges and government executives who control these matters will move any time soon to defuse the litigation minefield that software and business method patents have in recent years sown.

Bill Gates once famously pointed out that “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.”

Gates made this observation in the context of how Microsoft might continue to prosper in our increasingly patent-encumbered world by stockpiling patents of its own with which to fend off the attacks of powerful incumbents via patent exchange agreements. Overall, the strategy has worked well for Microsoft, but it isn’t an option for the fledgling, patent-less entrepreneurs whom Microsoft counts among its customer base for products such as Visual Studio Express Edition.

Rather than waiting in vain for government leaders to check patent overgrowth enough to carve out a space in which entrepreneurs may operate, perhaps the IT vendors who stand to profit from tomorrow’s start-ups by providing them with the development tools, platforms, and components on which they’ll build will see the value of carving out that space on our behalf.

I contend that when entire categories of emerging technology, such as VOIP, are left to fall under the shadow of questionably broad patents, the threat extends beyond individual companies or projects, such as Vonage or the open-source Asterisk project, and also darkens the horizons of the IT industry as a whole. Microsoft and other large IT concerns have taken steps to shield developers from potential patent litigation surrounding particular technologies that these giants own, but Microsoft and others should consider broadening these protections to ensure the continued health of the industry.

It could be a sort of U.N. Security Council of IT, in which patent-holding powers would work together to make the world safe for innovation. No, it doesn’t seem like a very democratic proposal, but it’d be no less democratic than the status quo.