Venture capitalist Brad Feld has long been an outspoken critic of software patents. He was kind enough to answer some questions for End Software Patents.

ESP: As a venture capitalist who blogs about abolishing software patents, what do you say about claims that companies need patents in order to attract investment?

Brad Feld: The claims that software companies need patents in order to attract investment is a myth. I’ve made over 300 investments in software companies since 1994 – their patent position has never influenced my investment. This is especially true if you are an early stage investor as that vast majority of startups don’t have any issued patents until at least four years into their life. Until recently, VCs were unwilling to take a position on this and I often felt like I was a lone voice out in the wilderness. That has changed in the past few years as more and more VCs are expressing their clear opinion that software patents are irrelevant to their investment decisions.

ESP: Quite a few venture capitalists are publicly against software patents. (Brad Burnham, Laura Creighton, Fred Wilson, Todd Vernon, Jason Mendelson, Art Reisman) Why are software patents such a big problem for venture capitalists?

Brad Feld: I don’t think this is limited to VCs – many of the folks openly talking out against software patents include great software developers like Tim Bray (see who recently moved from Sun to Google. More and more people that have been serious software developers (including VCs like me who used to write software for a living) are increasingly viewing the patent system being completely broken with regard to software. In some cases, like mine, I think software isn’t something that is valid to be patented in any case. As the software patent mess has increased, it’s become an incredible inhibitor of innovation which is exactly the opposite of the goal of patents in the first place.

ESP: From being in the court room for the Bilski hearing (transcript), what impression did you get about the judges’ level of interest in software?

Brad Feld: I think the judges were very interested in software, but both of the lawyers tried to steer clear of it. The fact that it came up several times is interesting.

ESP: The Bilksi ruling is due soon. Estimates range from March to May – what rulings do you think are reasonably likely?

Brad Feld: I have no clue what the rulings will be. I’ve never been a “predictor” and I wouldn’t dare be presumptuous about predicting what the Supreme Court will suggest.

ESP: In the amicus briefs submitted for Bilksi, do you think the case for excluding software ideas from patentability was well represented?

Brad Feld: Some of the briefs did a good job of explaining why software should be excluded from patentability. While I’d like to think that Bilski would broadly address software non-patentability, I’m hopeful it will be a first step in addressing it.

ESP: Some people have suggested that Bilksi could be followed by a legislative battle. Do you think we’re in a good position to push for the abolition of software patents via Congress?

Brad Feld: I have no idea.

ESP: What to you see as important to focus on post-Bilski?

Brad Feld: I’m personally focused on public awareness of the issue, especially within the PTO.

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Categories: Opinion