Hard Is the New Patent

“The only protection you have from me copying you, is doing something really really hard”
- CEO of Major Technology Company

Last year, a bill containing key pieces of needed patent reform was killed in the Senate. The legislation was aimed at reducing patent trolls by preventing them from bringing baseless lawsuits to extract concessions from companies without the financial strength to take the issue to court. There is another side to the patent reform debate that gets talked about less, it’s the side where small companies aren’t really even protected in many cases by patents. We all file them, we pay hundreds of thousands of dollars for them, but it feels like we’re checking the box, not really adding real protection.

In 2013, when we were raising money for SOLS, a CEO of a large publicly traded technology company asked us how we would protect our technology from competitors. The first thing out of our mouth was “oh, we filed patents” — without hesitation he chuckled and told us that the only protection we had from him not taking our idea was to do something really difficult. That statement stuck with me for the last year and I haven’t asked a company how they plan on protecting their IP since — either what they are doing is hard or it’s not.

Brad Bernthal from the University of Colorado once told me that a patent is only as strong as the willingness to enforce it. It seems to me that our patent system has figured out a way to both screw the little guy by enabling fraudulent patent trolls and at the same time taken away protection from the innovators that need it most — small cash strapped companies. In the current environment it has become painfully obvious that the only protection is the difficulty with which someone could copy what you’ve created whether that be a technology, community or process.

It has been great to see Congress take up these issues again this year, bringing 2 new bills to the table. Techcrunch does an excellent job at breaking each down of the bills and their chances at passing.

This is a modified version of an article I originally wrote in May of 2014 which was not shared widely.