December 20, 2002  ·  Lessig

Jabber has written a powerful piece about the threat that AOL’s patent covering IM technology creates for innovation in the IM market. Even if AOL does not enforce the patent, as Jabber argues, the threat that it may makes is much less likely that innovators will invest time to develop IM technology. AOL’s sword will be enough to keep innovation away, Jabber says.

These issues are complex, but this case does lots to highlight just what wrong about the software patent business. Does anyone really believe that there was inadequate incentives to be inventing in this area? Was there really a need for a government monopoly to help spur innovation? And even if there is, does a 20 year monopoly over something as fundamental as IM make sense to anyone?

Vardi and his son were brilliant inventors. They deserve all the credit in the world. And it is exactly the wrong (since self-defeating) response to now attack AOL: They are a business; the managers are hired to make money; they will make money however they can given the rules as they are.

The appropriate response is to attack the system. It is four years since a court held that software and business methods were patentable. What exactly have we done since then to get legislators to fix this mess?