This has been posted here before, but some people might not have seen it yet:
Parasites.
I'm proud that there is "a relative dearth of patent applications for the video game industry, especially considering how technology-dependent the video game industry is, and given its size in terms of annual sales."
Before issuing a condemnation, I try hard to think about it from their point of view -- the laws of the land set the rules of the game, and lawyers are deeply confused at why some of us aren't using all the tools that the game gives us.
Patents are usually discussed in the context of someone "stealing" an idea from the long suffering lone inventor that devoted his life to creating this one brilliant idea, blah blah blah.
But in the majority of cases in software, patents effect independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement.
Why should society reward that? What benefit does it bring? It doesn't help bring more, better, or cheaper products to market. Those all come from competition, not arbitrary monopolies. The programmer that filed the patent didn't work any harder because a patent might be available, solving the problem was his job and he had to do it anyway. Getting a patent is uncorrelated to any positive attributes, and just serves to allow either money or wasted effort to be extorted from generally unsuspecting and innocent people or companies.
Yes, it is a legal tool that may help you against your competitors, but I'll have no part of it. Its basically mugging someone.
I could waste hours going on about this. I really need to just write a position paper some day that I can cut and paste when this topic comes up.
That software patents don't work can be shown from the simple fact that no software "inventor" tries to sell his patented idea to a big company.
If I invent intermittent windscreen wipers for cars then it's worthless to me unless I also intend to make cars and without a patent I can't try and sell my invention to a car company because they can simply copy it.
When have you heard of an inventor with a software patent selling that idea to a large software company?
I think SW patents are largely broken, but not for the reason you cite. In the past few years, I've interviewed a number of SW candidates who own their own patents and expressed interest in selling them to whichever company ended up hiring them. This struck me as a smart way for candidates to increase their value to potential employers, many of which have been trying to beef up their patent portfolio in recent years...
I have a list of patents I have 'invented' and were filed by previous employers and this has got me jobs - but on the basis that I 'understand about patents', not because they specifically wanted them (since I don't own them)
The problem with filing the patents personally is that it's expensive to do and astronomically expensive to defend them. That's the real problem with patents today - they have become a May Day parade of tanks used to impress the enemy with how powerful you are.
> The problem with filing the patents personally is that it's expensive to do
You can get a patent for under $1000 and that patent is likely to be worth significantly more to a company whose looking to build their portfolio for defensive measures.
> and astronomically expensive to defend them
Agreed, but I'm sure these individuals had no intention of defending their patents. Unlike trademarks, patents don't become invalidated if the owners fail to go after infringers.
> they have become a May Day parade of tanks used to impress
> the enemy with how powerful you are.
I think an arms race is a better analogy than a parade. Most (though not all) companies pursue patents because they feel they need to in order to avoid annihilation -- not because they want to show off.
Filing a patent just to have a patent is a few $100 - even less if you only file provisionally and hope the new employer doesn't understand the difference!
But if you want a patent to be of value, then it needs professional drafting and filing in multiple countries with specialist lawyers who understand for instance why Taiwan is different. That and translation and renewal fees costs $10-100K
Having a US-only patent does have value even if a corporation would often want to expand its scope after acquiring the patent.
Regardless, the objections you're raising now aren't specific to software patents. Your initial comment was that software patents are different from hardware patents because individuals don't try to sell them to companies. Individuals can (and do) acquire patents and make money by selling them to companies.
"Rather more revealingly, Gates concluded that the “solution” to the problem of patents was “patenting as much as we can… A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.”"
Interesting! It looks as though at least Paul Allen received the message loud and clear.
And Microsoft knows the problems which might be caused by software patents very well. Here is a quote from Microsoft founder Bill Gates in 1991: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today." Most interesting is Mr. Gates conclusion: "The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors."
And Google has adopted the same strategy. Corporations do not have any human sense of morals, fairness, or ethics much as mobs will commit crimes any individual in the mob would never consider. Groups do not think and function like individuals.
And we can't expect these for-profit groups to spend energy fixing the system. Any single company would be penalized compared to its peers if it spent time, people, and money lobbying governments for change.
The solution must be individuals and/or a consortium of some sort.
Before patents we had the guild system, essentially secret societies that wouldn't share their skills, designs, or processes, and intentionally obfuscated their work. Patents were part of a program of reform that in part led to the industrial revolution. If instead of patenting the early steam engine designs each inventor had formed a secretive guild, worked in isolation, and produced intentionally convoluted designs, where would we be now?
Patents are a lottery system that rewards some inventors for publishing their designs, but has the effect of encouraging everyone to publish their designs in the hope of winning the lottery.
The problem with our IP law is that it is maladapted for the information age. Copyright, in particular, is the wrong kind of protection for software (which is machinery) especially since it is used to protect binaries and not source code (which is instead kept secret, meaning that copyright has the negative impact of creating monopolies without the offsetting positive impact of creating public goods).
Patents would be almost perfect for software if the patent required provision of working source code -- the ridiculous language of patent law exists because expressing the precise workings of machinery in words is difficult -- not so with software.
If software patents included source code, it would accomplish the goal of patents (making public goods) and make identifying infringement less arbitrary (and probably even establish stronger arguments for obviousness and prior art). "oh this algorithm is provably isomorphic to this trivial lisp expression, so yeah it's obvious."
Having software patents include source code is not a bad idea, but I don't think it would address the most serious problem.
The big problem, in my view, is that the obviousness bar is just way too low. The reality we have today is, the first practitioner to think of a given problem can straightforwardly produce, using standard techniques, a solution to that problem, and patent it. It's considered an invention because the solution, let's suppose, didn't previously exist, but that's only because no one had attempted to solve that particular problem before. The patent teaches nothing new; another practitioner, unaware of the patent, coming upon the same problem, is likely to solve it in a similar way and with no great difficulty.
I'm not saying all software patents are in this category, but I think the great majority of them are. And the reasons are not hard to find. First, software is, by its nature, a fantastically generative medium. All that is required to build a machine of any degree of complexity is to write down, in the mathematical formalism called "code", a sufficiently precise specification of how that machine should work.
And secondly, as has been lamented many times, when the PTO first started to grant patents on software under orders from the U.S. Supreme Court (in Diamond v. Diehr), they had no software experts. Even now, as I understand, they tend to hire new graduates who have little industry experience. What's more, patent examiners have no incentive to reject patents on the basis of obviousness; that's not how their performance is measured.
These two factors together are a recipe for disaster.
I think including source code in patents would (a) achieve the goal of creating a public good, and (b) provide a concrete mechanism for gauging prior art and obviousness. We already have tools for detecting plagiarism in computer science assignments.
Of course a patent application could include obfuscated code, but if the obfuscation were effective then it would be unenforceable -- oh the irony. (my new implementation is much more efficient...)
I agree with your points, but I don't see that they actually detract from what I propose relative to the status quo.
Gates said it perfectly about the barriers to entry of most startups being directly related to "over-patenting." I have experienced this a couple of times personally, but I keep on hearing it over and over again from friends who are also trying to execute their thoughts. Outsmarting a big bully can be tricky.
"A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors."
While patents may provide a "stumbling block to innovation and progress", it's wrong to say they inhibit "the free exchange of ideas, and restrict[] our knowledge of how things work." Patents do just the opposite: to obtain one, you must describe in detail how a process works. This means that when you're granted a patent, you disclose to the whole world how your novel invention or process works. (The argument that the USPTO is granting frivolous patents on non-novel things is a separate argument.)
The alternative (though not really applicable to software or mechanical processes that get shipped in a product) is to keep everything secret. Had Coca Cola patented their formula, everyone would have known how to make the drink 20 years later.
Do you know anybody who acquires new knowledge by reading patents?
1. Because of the legalese language in which patents are written it's pretty damn hard to even understand what is patented.
2. Even if you understand what the patent is about, it's probably of little help in implementing the thing by yourself, as the patent just describes the general idea.
3. If you indeed understand the idea, you might then come up with an improvement, but there's no benefit for you in publishing it, as the underlying idea is patented, the only one to gain from it is the patent holder.
4. You are encouraged by the system to not read patents, because if you happen to infringe one, your knowledge of the existence of patent can be used against you.
There is so much wrong here that I appreciate you numbering them.
-1. Yes, people read patents all the time. For one example many might be familiar with here, see any of the Mac or Canon or Nikon rumors sites, which comb through filings to learn what their favorite companies are up to. Second, the benefit comes not just from reading the actual patents. Since the info is already out there and protected, there's no real harm for those who developed the innovation in discussing it openly in journals/conferences/trade shows/popular magazines/newspapers/etc. We see this all the time, probably much more than if patents didn't exist.
1. Patents are generally written in pretty simple language. When they're hard to read, it's because the language used is technical, not legal.
2. This is just factually wrong. If you don't describe something, it's very difficult to try to prevent or collect from someone using the idea you haven't described.
3. Sure, for a limited time. This doesn't mean there aren't periphery benefits from seeing how someone did something novel. In the medical field, advances that utilize some novel technique often provoke other people to look at similar though unrelated techniques.
I spent ten years in a corporate research lab, and my experience was quite different from yours. Specifically,
1. Our process went like this: first the researcher wrote up a description of the invention for review by a panel of his peers. If the panel decided that a patent should be filed, then the file was handed off to a patent attorney, who transformed the clearly-written technical description into an incomprehensible mess of legal jargon. The inventor was supposed to review it and confirm that it accurately reflected his invention, but if asked in confidence, I suspect most of the inventors would admit that they didn't understand a word of it and just signed the application to get it off their desks. To reiterate: these things were so bad that the inventor himself didn't understand them.
4. There were conflicting opinions withing the company, but it is true that some people advise against doing a search of existing patents. I'm not an expert in the law, but as I understand it, if it can be shown that you had knowledge of the patent you were infringing, treble damages can be imposed. And in software, if you search hard enough you're sure to find something you're infringing.
I agree with your point -1. Once we had filed a patent, we were free to publish our work in journals and conferences, and these papers were written by the inventor with the intent of communicating, in contrast to the patents, which were written by a lawyer whose intent seemed, as far as I could tell, to be to obfuscate and confuse.
You give no basis for your rejection of item 4, and while IANAL, I think you are wrong. I have definitely worked for companies whose corporate counsel advised us software engineers not to read patents related to the work we were doing. There is little to be gained by doing so, I was told, and it would expose the company to the possibility of triple damages if it somehow became known that we had infringed a patent we had read.
Yes, there are people who read patents, but AFAIK, at least in the area of software, they are not usually practitioners.
All that said, I actually agree with you that discarding the patent system entirely, even just for software, would be throwing out the baby with the bathwater -- but I also have to agree with those who argue that in the case of software, the baby/bathwater ratio is just awfully small.
RE your first point, you're sort of correct. Courts can award treble damages for willful and wanton infringement of a patent. Courts don't award treble damages willy nilly; they seem to award them when you intentionally rip off somebody's patent. Even if you know of another's patent rights, if you have a good faith claim as to why/how your patent doesn't infringe, and if you have a solid opinion letter from counsel, you generally won't get hit with increased damages, even if you lose the underlying suit.
RE software, I'd tend to agree with you. The original post makes the case that all patents are bad though, and that they specifically prevent that transmittal of knowledge. That's really what I was responding to.
3. For a limited time? 20 years is pretty much forever in the software industry. So sure you might start to look at alternative ways, but it can be quite hard when the obvious solution is patented. But often the patent attempts to cover the most general idea possible, so your entirely different implementation of the idea might still be infringing the patent.
But the main problem with software patents in particular is that you can never be sure if you're infringing something. You can only hope that you don't.
I think it's an allusion to the quote at the start of the article: "All art is theft". Maybe it would have been more correct as "all inventions are theft".
How so? To me, All invention is theft would have been a very compelling headline. Rather than conjure up images of a politically-minded linux geek, it makes me wonder what kind of article is behind such an apparently indefensible headline.
I agree with the writer of the article in that we are always building on the ideas of others, but I also see the side of the holder of the patent.
When so much is invested (time, money, resources) into R&D, the first mover tends lose in the end. All a competitor needs to know is that it is possible. As Seth Godin has said several times, once something can be put on paper, it can be produced cheaper by someone else.
So, if we are to get rid of patents, then startups and other inventors will need to find creative ways to capitalize/profit on the ideas benefit from being first mover.
When I expressed the opinion the other day that patents were stupid, my boss said my position was "radical". I just laughed and said it wasn't in the software industry.
"Oh, well, software patents are bad, but...". He's a mechanical engineer by education.
I didn't bother bringing up the threatening letter we got from a patent troll a couple months ago :)
As Marx wrote, from your link, " 'theft' as a forcible violation of property presupposes the existence of property." And this is true for tangible property, though importantly not true for intangible, intellectual constructs.
The term "Intellectual Property" is a misnomer. It would be better named "Intellectual Control" as it does not in any way protect the inventor's natural right to use the fruits of their invention. Rather, it exists only to deprive others of a similar ability. Patents derive their value not from the nature and value of invention, but from the controls and limits placed on the intellectual freedoms of others.
We do not know how to share physical objects, so assignment of use is natural and necessary. This is not true of intellectual constructs.
No, I get that. Even if you're a capitalist, the concept of intellectual property doesn't make sense.
> As Marx wrote, from your link, " 'theft' as a forcible violation of property presupposes the existence of property."
Obviously the phrase "property is theft" is circular, but in the context it was originally said it makes a bit more sense.
> We do not know how to share physical objects, so assignment of use is natural and necessary. This is not true of intellectual constructs.
"Property" isn't just assigning the use of a particular object to a particular entity, it's also giving to that entity the right to prevent others from using that object (by violence, ultimately). This is arguably okay for "personal property", but what that quote is really referring to is "private property": land, factories, "the means of production". What characterises "private property" is that the entity which has the right to prevent others from using the "property" (the owner of the land or boss of the factory) is not the entity which actually uses the "property" (the workers in the factory or the people who actually work on the farms, or mine the mines, or whatever). This is the sense in which property is theft.
Parasites.
I'm proud that there is "a relative dearth of patent applications for the video game industry, especially considering how technology-dependent the video game industry is, and given its size in terms of annual sales."
Before issuing a condemnation, I try hard to think about it from their point of view -- the laws of the land set the rules of the game, and lawyers are deeply confused at why some of us aren't using all the tools that the game gives us.
Patents are usually discussed in the context of someone "stealing" an idea from the long suffering lone inventor that devoted his life to creating this one brilliant idea, blah blah blah.
But in the majority of cases in software, patents effect independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement.
Why should society reward that? What benefit does it bring? It doesn't help bring more, better, or cheaper products to market. Those all come from competition, not arbitrary monopolies. The programmer that filed the patent didn't work any harder because a patent might be available, solving the problem was his job and he had to do it anyway. Getting a patent is uncorrelated to any positive attributes, and just serves to allow either money or wasted effort to be extorted from generally unsuspecting and innocent people or companies.
Yes, it is a legal tool that may help you against your competitors, but I'll have no part of it. Its basically mugging someone.
I could waste hours going on about this. I really need to just write a position paper some day that I can cut and paste when this topic comes up.
John Carmack
http://slashdot.org/comments.pl?sid=151312&cid=12701745