Paul Graham - Essays

This is a very hard question to answer in the general case. People write whole books on the topic. One of my main hobbies is the history of technology, and even though I've studied the subject for years, it would take me several weeks of research to be able to say whether patents have in general been a net win.

One thing I can say is that 99.9% of the people who express opinions on the subject do it not based on such research, but out of a kind of religious conviction. At least, that's the polite way of putting it; the colloquial version involves speech coming out of organs not designed for that purpose.

Whether they encourage innovation or not, patents were at least intended to. You don't get a patent for nothing. In return for the exclusive right to use an idea, you have to publish it, and it was largely to encourage such openness that patents were established.

Before patents, people protected ideas by keeping them secret. With patents, central governments said, in effect, if you tell everyone your idea, we'll protect it for you. There is a parallel here to the rise of civil order, which happened at roughly the same time. Before central governments were powerful enough to enforce order, rich people had private armies. As governments got more powerful, they gradually compelled magnates to cede most responsibility for protecting them. (Magnates still have bodyguards, but no longer to protect them from other magnates.)

Patents, like police, are involved in many abuses. But in both cases the default is something worse. The choice is not "patents or freedom?" any more than it is "police or freedom?" The actual questions are respectively "patents or secrecy?" and "police or gangs?"

As with gangs, we have some idea what secrecy would be like, because that's how things used to be. The economy of medieval Europe was divided up into little tribes, each jealously guarding their privileges and secrets. In Shakespeare's time, "mystery" was synonymous with "craft." Even today we can see an echo of the secrecy of medieval guilds, in the now pointless secrecy of the Masons.

The most memorable example of medieval industrial secrecy is probably Venice, which forbade glassblowers to leave the city, and sent assassins after those who tried. We might like to think we wouldn't go so far, but the movie industry has already tried to pass laws prescribing three year prison terms just for putting movies on public networks. Want to try a frightening thought experiment? If the movie industry could have any law they wanted, where would they stop? Short of the death penalty, one assumes, but how close would they get?

Even worse than the spectacular abuses might be the overall decrease in efficiency that would accompany increased secrecy. As anyone who has dealt with organizations that operate on a "need to know" basis can attest, dividing information up into little cells is terribly inefficient. The flaw in the "need to know" principle is that you don't know who needs to know something. An idea from one area might spark a great discovery in another. But the discoverer doesn't know he needs to know it.

If secrecy were the only protection for ideas, companies wouldn't just have to be secretive with other companies; they'd have to be secretive internally. This would encourage what is already the worst trait of big companies.

I'm not saying secrecy would be worse than patents, just that we couldn't discard patents for free. Businesses would become more secretive to compensate, and in some fields this might get ugly. Nor am I defending the current patent system. There is clearly a lot that's broken about it. But the breakage seems to affect software less than most other fields.

In the software business I know from experience whether patents encourage or discourage innovation, and the answer is the type that people who like to argue about public policy least like to hear: they don't affect innovation much, one way or the other. Most innovation in the software business happens in startups, and startups should simply ignore other companies' patents. At least, that's what we advise, and we bet money on that advice.

The only real role of patents, for most startups, is as an element of the mating dance with acquirers. There patents do help a little. And so they do encourage innovation indirectly, in that they give more power to startups, which is where, pound for pound, the most innovation happens. But even in the mating dance, patents are of secondary importance. It matters more to make something great and get a lot of users.

[1] You have to be careful here, because a great discovery often seems obvious in retrospect. One-click ordering, however, is not such a discovery.

[2] "Turn the other cheek" skirts the issue; the critical question is not how to deal with slaps, but sword thrusts.

[3] Applying for a patent is now very slow, but it might actually be bad if that got fixed. At the moment the time it takes to get a patent is conveniently just longer than the time it takes a startup to succeed or fail.

[4] Instead of the canonical "could you build this?" maybe the corp dev guys should be asking "will you build this?" or even "why haven't you already built this?"

[5] Design ability is so hard to measure that you can't even trust the design world's internal standards. You can't assume that someone with a degree in design is any good at design, or that an eminent designer is any better than his peers. If that worked, any company could build products as good as Apple's just by hiring sufficiently qualified designers.

[6] If anyone wanted to try, we'd be interested to hear from them. I suspect it's one of those things that's not as hard as everyone assumes.

[7] Patent trolls can't even claim, like speculators, that they "create" liquidity.

[8] If big companies don't want to wait for the government to take action, there is a way to fight back themselves. For a long time I thought there wasn't, because there was nothing to grab onto. But there is one resource patent trolls need: lawyers. Big technology companies between them generate a lot of legal business. If they agreed among themselves never to do business with any firm employing anyone who had worked for a patent troll, either as an employee or as outside counsel, they could probably starve the trolls of the lawyers they need.

Thanksto Dan Bloomberg, Paul Buchheit, Sarah Harlin, Jessica Livingston, and Peter Norvig for reading drafts of this, to Joel Lehrer and Peter Eng for answering my questions about patents, and to Ankur Pansari for inviting me to speak.

(This essay is derived from a talk at the 2006 Startup School .)

The startups we've funded so far are pretty quick, but they seem quicker to learn some lessons than others. I think it's because some things about startups are kind of counterintuitive.

We've now invested in enough companies that I've learned a trick for determining which points are the counterintuitive ones: they're the ones I have to keep repeating.

So I'm going to number these points, and maybe with future startups I'll be able to pull off a form of Huffman coding. I'll make them all read this, and then instead of nagging them in detail, I'll just be able to say: number four!

The thing I probably repeat most is this recipe for a startup: get a version 1 out fast, then improve it based on users' reactions.

By "release early" I don't mean you should release something full of bugs, but that you should release something minimal. Users hate bugs, but they don't seem to mind a minimal version 1, if there's more coming soon.