"It is the lot of the prophet to be stoned." - B. H. Liddell Hart
Pity the poor visionary. Like Rodney Dangerfield, visionaries just don't get much respect. And given their past track record it's no wonder. The PBS documentary "The Revenge of the Nerds" points out that Microsoft, Apple and others did not repeat, did not originally conceive of or initially develop the ideas and products for which they became famous. And rich. Instead, these companies went out and found visionaries, and then took the visionaries ideas and made millions. All done legally of course. But done, nevertheless.
The documentary (an excellent one, by any measure) shows one programmer with a check that Bill Gates had paid for an operating system. The programmer is happy. The programmer has just been paid what will become a rounding error in Microsoft's revenues a few years later. Or witness Steven Jobs leaving Xerox PARC facilities with visions of a GUI interface running through his head. A vision developed by and placed there by Xerox. And they happily invited Jobs in with no restrictions. Anything Jobs took out of the facility that remained in his brain was his. For free and with clear title. This Jobs did without having to steal, trade or barter anything. In fact, Xerox apparently was delighted for Jobs to have their idea.
No wonder visionaries get no respect. Apparently a lot of them are stupid when it comes to business. The role of Apple, Microsoft and others was not that of a visionary, but as a developer and a market shaper based on someone else's vision. That's where the action is.
But software patents have arrived, and visionaries just may benefit as never before. Software patents take about two years to close, and the impact of software patenting is just now being felt.
By having software patents, visionaries who are willing to work through the system have an opportunity as never before to reap the rewards of their insight and, at least, have a chance against the big guys.
Prior to software patents, it was standard practice for the little guys the mavericks to do much of the hard research and development. The little guys made the mistakes and paid dearly for them. But when the little guy finally came up with something, the big guy would rush in with marketing and sales muscle and start to take market share away from the visionary. The visionary was left with a few handouts and fond memories as his/her reward.
With no intellectual property protection, the visionary just had to sit there and watch the fruits of his/her intellect slip away. The big guys with the marketing muscle and the reach were the ones who reaped the lion's share of the financial rewards. If the visionary was lucky, he/she might actually have their name attached to their innovation. More often than not, the visionary was simply forgotten, and the company that brought the products to market was given credit for all the innovation. People never even knew who had the inspiration in the first place.
Prior to software patents, the big corporations let the small fry take all the risks, and then moved in and appropriated all the rewards when it became apparent that the little guy had something worth taking.
Prior to patents, there was no intellectual property protection. There were trademarks that protected the look of a distinctive mark. But innovations in technology seldom take the form of a distinctive mark. Then there is copyright protection. Copyright protection has loopholes you can drive freight trains through. But software patents are a different matter altogether. At least there is the chance of protection of intellectual property with software patents.
Whether, in fact, software patents will provide protection is a matter for discussion. The first obstacle is that of the making of the patent itself. It takes a certain personality type to go through the patent process. You do not take the patent process lightly. The patent process requires its own set of rigors. But assuming that the software visionary gets through the challenges of the patent process, some degree of protection awaits.
But filing for and obtaining a patent is only where the action starts. If the patent is not written properly, it will be an easy obstacle for the astute attorney to bypass. There are many strategies an attorney can use to negate the protections of the patent. But even if the patent is written well, there may be other reasons why the patent may not be effective. There is the case where a large company with its massive legal resources can simply wear down a smaller opponent regardless of any merit of the patent.
Assuming that the small guy with the innovative ideas and the energy to get through the patent minefield can get through all of the pitfalls, patents can even the playing field. Based on the assumption that there is a leveling of the playing field, what will be the effect of the patent? The potential results will be many. The most obvious is that large companies are not going to like to be told that they have to play by a new set of rules especially where those rules are not favorable to the company and where the company has grown comfortable with the status quo. The rich guys have had it their way for so long that it is going to be a rude shock for them to learn that there is a new set of rules.
In order to make those new rules stick, the inventors are going to have to play hard ball with large companies. And this is not going to be easy or pleasant to do. This is asking a lot of these early patent pioneers. We have already asked them to be innovative and diligent, getting involved with legal activities well outside of their primary expertise. Now they have to be pugnacious as well. That is really a lot for any individual. But if we are to believe our laws, and if we truly do think that innovation is worthy of reward, then after a few stout Don Quixotes succeed in tumbling a few windmills, then the big guys with all the bucks will start to respect the innovators.
Risk-taking and starch in the collar are what opened up the West. The world will be a better place when the rewards of innovation start to accrue to the rightful owner.
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