Quinn, Cuban talk software patents, business of innovation


Recently, IPWatchdog.com has published a series of articles relating to Mark Cuban’s activities and views relative to the patent system. (See here, here and here.) Cuban is no stranger to the patent policy debate, and has gone on the record numerous times explaining that he thinks software patents should be abolished. In fact, he famously donated $250,000 to the Electronic Frontier Foundation for the creation of the Mark Cuban Chair to Eliminate Stupid Patents.

In the comments to the aforementioned articles, Mark Cuban engaged in a spirited back and forth with readers, and with me. I invited him to do an interview with me. He agreed and we conducted an e-mail interview. To read the full interview, please see A patent conversation with Mark Cuban.

One of the more interesting parts of our discussion, not surprisingly, centered on software patents. Our exchange was as follows:

QUINN: In the past, you have said that software patents should not exist. I have no doubt that is your honest opinion, but I wonder why you single out software patents in particular? Whether a process is carried out in software versus being carried out in hardware is really a design choice. Why should processes carried out by hardware be treated differently than those directed by software?

CUBAN: Code is code. Where it runs doesn’t matter. So it’s not different. I wrote software for 10 years. Not much, if anything, is completely original in software. Like Jobs said, it’s all a remix.

At one point during our e-mail exchange, Cuban also explained that if you “get rid of software and tech patents and inventors would still invent. Coders will still code. Entrepreneurs will still start companies. That’s what we do.” This led to the following follow-up exchange:

QUINN: I know we are never going to agree on software patents, but I’d like to take deeper dive on your answer about inventors inventing, coders coding and entrepreneurs starting companies. Fundamentally, I know you are right. Creative people create, it is what they do. The question for me is whether we can get the level of creation we want from those creative people. I always use the example of Van Gogh. If he needed to work a day job, he would have created a lot less, and I think the world would be worse off for it. So I want people like that, whether inventors or artists, to be able to make plenty of money from the activity so that they do more creating. When it comes to software, there is no doubt that people will create software even without patents, but what would that software look like? I can’t imagine IBM would have spent the billions of dollars investing to create Watson, for example. Granted, we have a “one size fits all” patent system, which is probably at the root of this problem, but I think you err in lumping all software together and treating it the same. The most useful software couldn’t be created without at least perceived ownership of the intangible rights.

CUBAN: Did Van Gogh get paid enough to live from his first painting or did he live at home with his parents?  I don’t know. IBM isn’t going to let itself go out of business.  They are not going to stop investing in Watson, because if they do, all those stock options management owns become worthless. How and why did creators create software before it was patentable? And what happens when machines create software and do it at light speed?  They will create trillions of lines of code and parcel them automatically hoping to find the needle in the haystack that turns into something of value.  Then what?

Some have taken Cuban’s comment that coders will code as meaning that code is easy to write, trivial even. I did not take the comment that way. Code is certainly not easy to write, at least if you are concerned with making a useful software product that has appropriate security, actually works for its intended purpose, has longevity, and can be scaled and maintained.

Even assuming that it is true — that coders will continue to code — that still doesn’t support the notion that we are better off without a patent system. Sure, there has been innovation without patents. But we know that without patents. the level of innovation is exasperatingly low. Just look at all the countries where there are no patent systems. Look at all the countries where there was no functioning patent system and compare them to those same countries after they adopted a patent system. Furthermore, without the ability to own the invention, there is no justifiable reason to invest in creating the innovation if real resources are required.

While we did not agree on software, there were many things we did agree on. Please check out the full interview for more.

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