Outspoken billionaire, Mark Cuban, is fed up with America’s patent system. “Dumbass patents are crushing small businesses. I have had multiple small companies i am an investor in have to fight or pay trolls for patents that were patently ridiculous,” he says in an email to TechCrunch.
The noted investor and Dallas Mavericks owner is perhaps best known for his unfiltered tweets against clumsy NBA officials, who he believes are endangering his star athletes. Now, he’s leveraging his penchant for attention-grabbing headlines with a newly endowed chair at digital civil rights organization, The Electronic Frontier Foundation, dubbed “The Mark Cuban Chair to Eliminate Stupid Patents.”
We interviewed Cuban and the lucky recipient of his donation, Julie Samuels, to better understand his public policy mission. As a journalist, I’m used to public figures giving bland, diplomatic answers that I have to then spice up with sense of scope and purpose. With Cuban, this was not a problem. His answers are so awesomely bold that I’ve decided to leave in their untouched, pristine form. Below each answer, Samuels and I provide more context for those who aren’t patent policy wonks.
Ferenstein: Why did you fund this chair (and where did you get the name)?
Cuban: Because dumbass patents are crushing small businesses. I have had multiple small companies i am an investor in have to fight or pay trolls for patents that were patently ridiculous. There is no place for software patents and most tech patents are not original in the first place. They are merely “remixes” of early technology.
I thought the EFF would be a great starting point to get the message to politicians that patent trolls are costing taxpayers (via trials/motions/etc.) and small businesses money that could otherwise be used for innovation and creating jobs.
I wanted a name that would get attention and not just be another announcement.
Context: Patent trolling is an opportunistic legal practice that exploits intellectual property without the intent of innovating. Acacia research, for instance, has claimed ownership of sending medical images over the Internet, threatening costly legal retribution for anyone who doesn’t pay up. Academics have found that Cuban’s experience is no exception: roughly one-third of startups have been threatened with patent violations, often from trolls.
Ferenstein: Do you have any specific policies you’d like to see implemented?
Cuban: I would like to see software patents completed eliminated, or if not eliminated have a five-year max shelf life.
I would like to see design patents eliminated. I would like to require that all patents be used in a business within five years or otherwise become public domain. The concept that patents are being held by non operating companies in hopes that someone will invent something they can sue over is Anti American, a huge tax on the economy and stymies innovation when entrepreneurs truly come up with a business only to find that the way they included tying the shoelaces on their new shoe was patented.
I would also like to see a “cold room” exception. If you can show you invented the idea using completely independent thought, you don’t violate the patent and the patent is invalidated.
Remember back in the 80s when AMD/Intel and others would clone each other and it was permissible because they came up with the features and functions completely independently? The same should apply to patents. If you didn’t copy an idea, you came up with it on your own, then the idea should not have been patented in the first place. If multiple people come up with the same idea independently, that is the definition of obvious.
You should be given the right to your idea if you come up with it independently and any patents in place for that idea should be invalidated.
Context: Right now, the patent system awards intellectual ownership in a “first to file” fashion, but great ideas are often discovered simultaneously by independent inventors. Wikipedia has an entire section on well-known instances of “multiple discovery,” including the discovery of calculus and the theory of evolution.
Ferenstein: Why don’t you think the kinds of reforms you’d like to see have been enacted yet?
Cuban: Lawyers are making too much money which means they are spending a lot of money in donations and lobbying. Why wouldn’t they? It’s easy money for law firms.
Context: Samuels explains that lobbying efforts have resulted in a one-size-fits-all system that treats multi-billion-dollar pharmaceuticals the same as time software projects. “But software operates differently. It functions uniquely as a building block technology,” she explains. “While writing code is surely not easy, it doesn’t require the kind of financial investment that pharmaceuticals do.”
Indeed, evidence that software functions differently than pharmaceuticals has led at least one influential congressman to hint that, in the near future, the government may pass laws to exempt software from strong patent protections.
Ferenstein: There was a major piece of legislation, the American Invents Act, passed recently. Do you have any thoughts on it?
Cuban: It was great for big companies. First come first serve. It did nothing to reduce the patent trolls’ impact on entrepreneurs and existing companies.
Context: Samuels explains that the American Invents Act first-to-file provision fuels trolls, since they only need to get their “hands on a crappy software patent and threaten a lawsuit.” As a result, Representative Peter Defazio is intending on passing a “loser pays” law that might scare patent trolls away from bogus lawsuits.
Ferenstein: If you could wave a magic wand and completely restructure the intellectual property system, how would you make it[?]
Cuban: No software patents. Independently derived ideas that are turned into products and can prove they are independently derived (Again, if multiple people come up with the same idea independent of each other, that should be as definite as it is obvious, and obvious cannot be patented), then it can not be patented, and all patents for those ideas are declared invalid.*
There you have it, folks. Cuban’s unfiltered thoughts on “stupid” patents. Share your thoughts with us below.
*responses edited for grammar and clarity