Guest blogger Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley. She teaches courses on intellectual property, cyberlaw, and information privacy, and she has written and spoken extensively about the challenges that new information technologies pose for traditional legal regimes. A version of this material is scheduled to appear in the November 2010 issue of Communications of the ACM.

Two-thirds of the approximately 700 software entrepreneurs who participated in the 2008 Berkeley Patent Survey report that they neither have nor are seeking patents for innovations embodied in their products and services. These entrepreneurs rate patents as the least important mechanism among seven options for attaining competitive advantage in the marketplace. Even software startups that hold patents regard them as providing only a slight incentive to invest in innovation.

These are three of the most striking findings from our recently published article, "High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey."

After providing some background about the survey, this column will discuss some key findings about how software startup firms perceive, use and are affected by the patent system.

While the three findings highlighted above might seem to support a software patent abolitionist position, it is significant that a third of the software entrepreneurs reported having or seeking patents, and that they perceive patents to be important to persons or firms from whom they hope to obtain financing.

Survey background

More than 1,300 high technology entrepreneurs in the software, biotechnology, medical devices, and computer hardware fields filled out the Berkeley Patent Survey. All of these firms had been started no more than ten years before the survey was conducted. We drew our sample from a general population of software firms registered with Dun & Bradstreet (D&B) and from the VentureXpert (VX) database that has a rich data set on venture-backed startups. (Just over 500 of the survey respondents were D&B firms; just under 200 were VX firms.)

Eighty percent of the software respondents were either the CEOs or CTOs of their firms, and most had experience in previous startups. The average software firm had 58 employees, half of whom were engineers. Between 10 and 15 percent of the software startup respondents among the D&B respondents were venture-backed firms. Among the software respondents, only 2 percent had experienced an initial public offering (IPO), while 9 percent had been acquired by another firm.

Our interest in conducting this survey arose because high technology entrepreneurs have contributed significantly to economic growth in recent decades. They build firms that create new products, services, organizations, and opportunities for complementary economic activities. We were curious to know the extent to which high tech startups were utilizing the patent system, as well as to learn their reasons for choosing to avail themselves of the patent system -- or not.

The basic economic principle underlying the patent system is that technology innovations are often expensive, time-consuming, and risky to develop, although once developed, these innovations are often cheap and easy to copy. In the absence of intellectual property rights (IPRs), innovative high tech firms may have insufficient incentives to invest in innovation insofar as they cannot recoup their research and development (R&D) expenses and justify further investments in innovation because of cheap copies that undermine the firms' recoupment strategy.

Although this economic principle applies to all companies, early-stage technology firms might, we conjectured, be more sensitive to IPRs than more mature firms. The former often lack various kinds of complementary assets (such as well-defined marketing channels and access to cheap credit) that the latter are more likely to enjoy. We decided it would be worthwhile to test this conjecture empirically. With generous funding from the Ewing Marion Kauffman Foundation, we and two other colleagues designed and carried out the survey and analyzed the results.

Why startups decide to patent -- or not to

The most important reasons for seeking patents, as reported by the software executives who responded to the Berkeley Patent Survey, were these:

1. to prevent competitors from copying the innovation (2.3 on a 4 point scale, where 2 was moderately important)
2. to enhance the firms’ reputation (2.2)
3. and to secure investment and improve the likelihood of an IPO (1.96 and 1.97 respectively)

The importance of patents to investors was also evident from survey data showing striking differences in the rate of patenting among the VX and the D&B software companies.

Three-quarters of the D&B firms had no patents and were not seeking them. Because the D&B firms are, we believe, typical of the population of software startup firms in the U.S., their responses may be representative of patenting rates among software startups generally. It is, in fact, possible that the overall percentage of software startup patenting is lower than this, insofar as patent holders may have been more likely than other software entrepreneurs to take time to fill out a Berkeley Patent Survey.

In striking contrast to the D&B respondents, over two-thirds of the VX software startup respondents in the sample, all venture-backed, had or were seeking patents. We cannot say why these VC-backed firms were more likely to seek patents than other firms. Perhaps VCs are urging the firms they fund to seek patents; or VCs may be choosing to fund the development of software technologies that VCs think are more amenable to patenting.

Interestingly, the rate of patenting did not vary by the age of the firm (that is, older firms did not patent at rates statistically significant from younger firms).

Why forgo patenting?

The survey asked two sets of questions about decisions to forego patenting: For the last innovation for which the firm chose not to seek a patent, what factors influenced this decision, and then what was the most important factor in the decision?

The costs of obtaining and of enforcing patents emerged as the first and second most frequent explanation. Twenty-eight percent of the software startups reported that the costs of obtaining patents had been the most important factor in this decision, and 12 percent said that the costs of enforcing patents was the most important factor. (They reported that average cost of getting a software patent was just under $30,000.)

Ease of inventing around the innovation and satisfaction with trade secrecy also influenced software startup decisions not to seek patents, although only rarely were these factors considered the most important.

Intriguingly, more than 40 percent of the software executive respondents cited the unpatentability of the invention as a factor in decisions to forego patenting, and almost a quarter of them rated this as the most important factor. Indeed, unpatentability ranked just behind costs of obtaining patents as the most frequently cited "most important factor" for not seeking patents.

It is difficult to know what to make of the unpatentability finding. One explanation might be that the software entrepreneur respondents believed that patent standards of novelty, non-obviousness, and the like are so rigorous that their innovation might not have satisfied patent requirements. Yet, because the patentability of software innovations has been contentious for decades, it may also be that a significant number of these entrepreneurs have philosophical or practical objections to patents in their field.

How important are patents to competitive advantage?

One of the most striking findings of our study is that software firms ranked patents dead last among seven strategies for attaining competitive advantage identified by the survey, as Figure 1 below shows. (The relative unimportance of patents for competitive advantage in the software field contrasts sharply with the perceived importance of patents in the biotech industry, where patents are ranked the most important means of attaining such advantage.)

Figure 1: Measures of Capturing "Competitive Advantage" from Inventions

As Figure 1 shows, software startups regard first-mover advantage as the single most important strategy for attaining competitive advantage. Next most important was complementary assets (e.g., providing services for licensed software or offering a proprietary complement to an open source program).

Interestingly, these two strategies for getting ahead in the market outstrip the IPRs about which we inquired for software firms. Among IPRs, though, copyrights and trademarks, closely followed by secrecy and difficulties of reverse engineering, outranked patents as means of attaining competitive advantage among software respondents by a statistically significant margin.

What incentive effects do patents have?

The Berkeley Patent survey asked startup executives to rate the incentive effects of patents on a scale, where 0 = no incentive, 1 = weak incentive, 2 = moderate incentive, and 3 = strong incentive, for engaging in four types of innovation: (1) inventing new products, processes, or services, (2) conducting initial R&D, (3) creating internal tools or processes, and (4) undertaking the risks and costs of commercializing the innovation.

We were surprised to discover that the software respondents reported that patents provide only weak incentives for engaging in core activities, such as invention of new products (.96) and commercialization (.93). By contrast, biotech and medical device firms reported just above 2 (moderate incentives) for these same questions.

Interestingly, the results did not change significantly even when focusing only on responses from software entrepreneurs whose firms hold at least one patent or application. Even patent-holding software entrepreneurs reported that patents provide just above a weak incentive for engaging in these innovation-related activities.

Resolving a paradox

If patents provide only weak incentives for investing in innovation among software startups, why are two-thirds of the VX firms and at least one-quarter of the D&B firms seeking patents?

The answer may lie in the perception among software entrepreneurs that patents may be important to potential funders, such as venture capitalists (VCs), angel investors, other firms, commercial banks, and friends and family. Sixty percent of software startups that had negotiated with VCs reported that that they perceived patents to be an important factor in VC decisions about whether to make the investments. Between 40 and 50 percent of the software respondents reported that patents were important to other types of investors, such as angels, investment banks, and other companies.

How well is the patent system working?

While most of the Berkeley Patent Survey questions focused on what firms had actually been doing vis-à-vis patents, we decided to ask a few questions to gauge the perception of high tech entrepreneurs about the patent system. We asked, for example, how well the entrepreneurs perceive the patent system to be working for them and for their industry. The scale for responses ranged from 0 = very poorly to 4 = very well, and 2 = neither poorly or well.

The software entrepreneurs' for-my-industry rating was 1.6 and their for-my-firm rating was 1.7. Both results tend toward the poorly end of the scale (in contrast to the biotech and medical device firms that reported above 2 ratings on both questions).

It is interesting is that the VX firms were slightly less positive about the patent system than the D&B firms, although the difference was not statistically significant. We also tested to see if the responses were bipolar (that is, did some software firms rate the patent system very poorly and their ratings canceled out by some positive responses?), but discovered that the ratings fell into a normal distribution, suggesting that we had drawn a sample from a cross-section of the population.

Conclusion

Over the next several years, we expect to engage in further analysis of the results of the 2008 Berkeley Patent Survey and to report new findings about the roles that patents play in the software industry. The initial findings reported here and in the larger article suggest that software entrepreneurs do not find persuasive the canonical story that patents provide strong incentives to invest in technology innovation. These executives regard first-mover advantage and complementary assets as more important than IPRs in conferring competitive advantage upon their firms. Moreover, among IPRs, copyrights and trademarks are perceived to be more important than patents. Still, about one-third of our software entrepreneur respondents reported having or seeking patents, and their perception that their investors care about patents seems to be a key factor in decisions to obtain patents.

Related:

• How do we measure innovation?

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References:

Stuart J.H. Graham, Robert P. Merges, Pam Samuelson, & Ted Sichelman, High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey, Berkeley Technology Law Journal, 25:4, pp. 1255-1327 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049.