Litigating software patents in court is expensive and often unsuccessful. The problem is that with software you can do things slightly differently and the patent becomes unenforceble. This is because lawmakers ensure patent claims are as narrow as possible. For example, if someone implements just a piece of the whole system differently, the court is unlikely to rule in your favor.

The Age of Shameless Stealing

The problem is that while your patent is pending, competitors can copy your ideas and build on them. By the time your patent is granted, competitors can already win the market, be profitable, or even exit out of business.

The mismatch between the time it takes to get the patent and time it takes to copy the innovation encourages the copycats. Today's software industry is flooded with clones.

There are dozens of me too! startups for each major technology area. All the startups are borrowing ideas, UI elements and functionality from each other. And because of the powerful technology at our disposal copying is so easy. Someone said to me once: Oh we don't want to use your technology, my dev guys can whip out something like this in a couple of days.

Sadly, the age of open source ideas is actually the age of shameless stealing.

Who Wins?

Startups copy each other, but the problem doesn't stop there. It gets worse when web giants copy startups. Once your idea gets incorporated into a big company's offering, things get tough.

A recent example is new Google browser Chrome. No doubt, it's a spectacular piece of software - elegant, simple, probably the browser of the future. A lot of the ideas in Chrome are not original, but taken from other browsers and add-ons.

Is this fair? Not really. But in today's tech world, the word fair has been replaced with the phrase fair game. Luckily for startups, most big companies are not good at execution, so it isn't that easy for them to copy. But when and if a large company comes out with a clone, the match is unfair.

Resources and distribution certainly matter when it comes to tech adoption, so the patent situation is strongly in favor of big companies. They can observe the market, see what ideas take off, and cherry pick what they see as interesting.

Who Really Wins

Perhaps the biggest irony in this patent debacle is that it benefits customers. Previously a patent would create a lock, a barrier to entry, while today innovation occurs with greater speed.

Because patents are irrelevant, companies small and large relentlessly go after each other, raising the bar, coming up with better products. At the end of the day this benefits the users.