The patent system isn’t broken — we are(thisismynext.com)
thisismynext.com
The patent system isn’t broken — we are
http://thisismynext.com/2011/08/11/broken-patent-system/
77 comments
I don't think his piece was intended to be a rebuttal to serious informed analysts so much as an attempt to discredit the naive abolitionists who frequently know little or nothing about patent law and who fix on edge cases and abuse as if they are the norm and declare 'off with his head.'
If you are irritated by such standard arguments, which I respect, bear in mind that there are those of us who are frustrated by endless statements about how 'obvious' software patents are and how the edge cases demonstrate the whole system is broken and hence must be abandoned which is as coherent a position as proposing to do away with criminal law because of high profile miscarriages of justice. The law is an ass. Duh.
If you are irritated by such standard arguments, which I respect, bear in mind that there are those of us who are frustrated by endless statements about how 'obvious' software patents are and how the edge cases demonstrate the whole system is broken and hence must be abandoned which is as coherent a position as proposing to do away with criminal law because of high profile miscarriages of justice. The law is an ass. Duh.
Agreed. He seems wowed by the Greek letters and radical signs that he quotes from the PageRank and Apple patents, thinking it is some precious knowledge that we public would be lucky to (eventually) be able to use. In truth, by the time people can use the knowledge, unencumbered (even with a proposed shorter patent timespan), it is obsolete and/or obvious. So the whole too-long article is built on a questionable premise, that software patents are worth preserving.
I particularly enjoyed the bit where he starts with, "What we keep calling 'software patents' are just regular old patents", then spends several paragraphs discussing the history of software patents and how they've been treated differently than others.
There's a difference between patents that happen to cover software and a carved-out subsection of patents designated specifically for software by law. We currently have the former - Niley believes we should have the latter.
That's certainly true, but as I understood it, he's arguing that patents that happen to cover software are no different from patents that happen to cover anything else, and then he goes on to describe in detail how patents that happen to cover software are different from others.
I'll attempt to clarify, but these my own words, not Nilay's:
1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed".
2. Software has certain properties that result in undesirable side-effects or ambiguities under the patent system at present, therefore we should adjust the treatment of patents on software to mitigate those effects and clarify those ambiguities. An example would be reducing term lengths to something more compatible with the pace of innovation.
1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed".
2. Software has certain properties that result in undesirable side-effects or ambiguities under the patent system at present, therefore we should adjust the treatment of patents on software to mitigate those effects and clarify those ambiguities. An example would be reducing term lengths to something more compatible with the pace of innovation.
> 1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed".
I don't understand, how does that work? Let's get rid of the word "software" for a moment. Say I think that patents involving ducks shouldn't be allowed, for whatever reason. There's nothing inherent about ducks that means you can't make a patentable invention with a duck. But that by no means implies that my stance against duck patents means I'm against patents as a whole.
I don't understand, how does that work? Let's get rid of the word "software" for a moment. Say I think that patents involving ducks shouldn't be allowed, for whatever reason. There's nothing inherent about ducks that means you can't make a patentable invention with a duck. But that by no means implies that my stance against duck patents means I'm against patents as a whole.
"One thing I do feel pretty certain of is that if you're against duck patents, you're against patents in general. Gradually our machines consist more and more of ducks. Things that used to be done with levers and cams and gears are now done with bills and feathers and webbed feet. There's nothing special about mechanical embodiments of control systems that should make them patentable, and the duck equivalent not." -- http://www.paulgraham.com/softwarepatents.html
I would also point out the other possibility in what I said before: that statements like "duck patents shouldn't be allowed" are wrong. Maybe "wrong" sounds too absolute, so substitute "incomplete" if you like. "Some duck patents shouldn't be allowed" is a different proposition, and probably closer to what most people actually think, but Nilay is specifically addressing the absolutist rhetorical frenzy on you see on sites like Quacker News.
I would also point out the other possibility in what I said before: that statements like "duck patents shouldn't be allowed" are wrong. Maybe "wrong" sounds too absolute, so substitute "incomplete" if you like. "Some duck patents shouldn't be allowed" is a different proposition, and probably closer to what most people actually think, but Nilay is specifically addressing the absolutist rhetorical frenzy on you see on sites like Quacker News.
The ubiquity of software (or ducks) in modern machines isn't really relevant to the implications of the positions people hold. Just because software is used everywhere doesn't mean that being against software patents implies being against all patents. I think what you and others are trying to say here is that if you're against software patents, you should be against all patents, but that's substantially different. It's taking an invalid rhetorical shortcut of assuming the other person has no good reason to make the distinction, rather than actually asking whether he does.
As for "some", you may be right, but I'm hard-pressed to think of any worthwhile software patents. Really, the fix for software patents is probably to reduce the term and vastly increase the requirements for novelty rather than eliminating them altogether, but on the other hand I really don't see much downside to simply disallowing it completely. Maybe I'm missing it, but patents don't really seem to be a requirement for software innovation.
As for "some", you may be right, but I'm hard-pressed to think of any worthwhile software patents. Really, the fix for software patents is probably to reduce the term and vastly increase the requirements for novelty rather than eliminating them altogether, but on the other hand I really don't see much downside to simply disallowing it completely. Maybe I'm missing it, but patents don't really seem to be a requirement for software innovation.
That isn't what's being said in that paragraph at all. You're fixating one one sentence (the second) and completely ignoring the latter two. It's not about ubiquity, it's about software and mechanical parts being equivalent in their ability to comprise inventions. They're just different materials you can build inventions out of. It speaks no more about the merits of an invention than any other material.
Put another way: What's so special about "not-software" or "not-duck" that excludes it from the issue you have with software or duck patents?
Put another way: What's so special about "not-software" or "not-duck" that excludes it from the issue you have with software or duck patents?
> Put another way: What's so special about "not-software" or "not-duck" that excludes it from the issue you have with software or duck patents?
That's pretty much my point. The original construction assumes that not only is there nothing special, but that the person arguing against software (duck) patents thinks that there is nothing special.
My real complaint is phrasing it by saying that a person who argues against software patents must be opposed to all patents, when it would be much more correct and much less insulting to say that this person should be opposed to all patents. One reduces the other person's argument to an absurd degree without allowing for any possibility that they might have a point, and the other just states why you (or whoever) think they're wrong.
That's pretty much my point. The original construction assumes that not only is there nothing special, but that the person arguing against software (duck) patents thinks that there is nothing special.
My real complaint is phrasing it by saying that a person who argues against software patents must be opposed to all patents, when it would be much more correct and much less insulting to say that this person should be opposed to all patents. One reduces the other person's argument to an absurd degree without allowing for any possibility that they might have a point, and the other just states why you (or whoever) think they're wrong.
I honestly don't know what you're talking about. I'm sorry you were insulted by something I didn't say, and that you feel the argument you didn't make was unfairly reduced to absurdity. I was only trying to help.
Another dubious aspect is linking to PG's essay with the implication it's a slam dunk argument for software patents. While PG may come out in favor of software patents, he readily admits that the issue is difficult.
PG does make a good argument that abolition of software patent would be a step in the abolition of all patents (and the incentivation of companies to hide all profitable innovations). Yes, but the further institutionalization of software patents could just as easily result in a limited number of large companies owning the right to innovate in any fashion. Pick your poison.
One thing to consider here is that GPL's software provides a similar incentive system to the patent system. In exchange for releasing its algorithms, a company gets to distribute a huge store of existing software. Letting that arrangement replacement the patent system seems like a fine approach to me.
PG does make a good argument that abolition of software patent would be a step in the abolition of all patents (and the incentivation of companies to hide all profitable innovations). Yes, but the further institutionalization of software patents could just as easily result in a limited number of large companies owning the right to innovate in any fashion. Pick your poison.
One thing to consider here is that GPL's software provides a similar incentive system to the patent system. In exchange for releasing its algorithms, a company gets to distribute a huge store of existing software. Letting that arrangement replacement the patent system seems like a fine approach to me.
The fact software patents are published in their patent form isn't any better than "hiding these inventions". As others commented, nobody reads software patents (it's even legally dangerous to do so).
What we have no is the worst of all worlds: Invention secrecy and noncompetitive monopolies.
Also, software is a composition of far more patentable components than other things -- so patents are much more troublesome in that field. A software patent is somewhat like patenting a literary concept or a musical technique.
What we have no is the worst of all worlds: Invention secrecy and noncompetitive monopolies.
Also, software is a composition of far more patentable components than other things -- so patents are much more troublesome in that field. A software patent is somewhat like patenting a literary concept or a musical technique.
This is a rubbish article. It attempts to paper over obvious, horrible problems by blaming the people who try to game the system. It also attempts to marginalize objections to the current patent system by blaming people.
For starters, the anti-patent (or even anti-"Intellectual Property") position is not a default mindset, even today. The anti-patent viewpoint is not an "intellectual cheat", if the arguers back up the position with research, facts and examples, which, oddly, this article even gives.
Secondarily, the article even raises the basis for patents in the USA: to promote progress in science and engineering. If the patent system doesn't do that, then what is it's purpose? If the patent system just ends up giving incumbents in the market ways to limit competition,the it is indeed well and truly broken.
For starters, the anti-patent (or even anti-"Intellectual Property") position is not a default mindset, even today. The anti-patent viewpoint is not an "intellectual cheat", if the arguers back up the position with research, facts and examples, which, oddly, this article even gives.
Secondarily, the article even raises the basis for patents in the USA: to promote progress in science and engineering. If the patent system doesn't do that, then what is it's purpose? If the patent system just ends up giving incumbents in the market ways to limit competition,the it is indeed well and truly broken.
Very well said, this article is misleading to say the least.
I take issue with article suggesting that all anti-patent views want that patent system abolished. That is absolutely not the case. The patent system should be brought into line with the rate at which industry is capable of innovating today. Furthermore, software patents need special treatment in their own right. They are simply not specific enough, and it is the generalisation that stifles innovation.
Again, I refer to Martin Fowler's excellent blog post on the subject of software patents http://martinfowler.com/bliki/SoftwarePatent.html
I take issue with article suggesting that all anti-patent views want that patent system abolished. That is absolutely not the case. The patent system should be brought into line with the rate at which industry is capable of innovating today. Furthermore, software patents need special treatment in their own right. They are simply not specific enough, and it is the generalisation that stifles innovation.
Again, I refer to Martin Fowler's excellent blog post on the subject of software patents http://martinfowler.com/bliki/SoftwarePatent.html
Can someone summarize what the hell this guy's point is? I read 5 different paragraphs closely and skimmed the rest (he needs an editor) and can't figure out what he's saying, besides calling people who have a beef with software patents "lazy".
What's his solution to Intellectual Ventures, et al? One of the paragraphs I did read compared them to buying up land in the middle of town and setting up a strip mine. Which isn't a favorable comparison and, incidentally, we have zoning laws against that.
What's his solution to Intellectual Ventures, et al? One of the paragraphs I did read compared them to buying up land in the middle of town and setting up a strip mine. Which isn't a favorable comparison and, incidentally, we have zoning laws against that.
I've read it twice in it's entirety, and his main point is that he believes we would be better off changing patent law to create an explicit category for software patents and have different rules for those patents, rather than simply abolishing software patents (or all patents). This strikes me as not a horrible idea, but his argument sucks. (Primarily because it is predicated on the idea that everyone who disagrees with him is essentially a retard, but also because a lot of his points are hand-wavy or just don't make sense).
I particularly disagree with his between-the-lines assertion that nobody other than Larry Page would've figured out the Page Rank formula by 2018. If that assertion isn't true then he fails to establish that patents have any value to society, and there is no reason (provided by the article) to think we shouldn't just get rid of them.
I particularly disagree with his between-the-lines assertion that nobody other than Larry Page would've figured out the Page Rank formula by 2018. If that assertion isn't true then he fails to establish that patents have any value to society, and there is no reason (provided by the article) to think we shouldn't just get rid of them.
His main idea is that the way software patents are classified now does not make sense. He then suggests that a new class of patents be created just for software with special rules and regulation.
I'm not too sure why his title blames people because in the end he ends up blaming the current laws.
I'm not too sure why his title blames people because in the end he ends up blaming the current laws.
Ok, so software patents as presently litigated are the problem. Thanks.
I thought he was going to blame people for exploiting poorly written laws, in which case I was going to offer to sell him a bridge somewhere.
I thought he was going to blame people for exploiting poorly written laws, in which case I was going to offer to sell him a bridge somewhere.
I recently asked a patent lawyer acquaintance of mine the question: "Do you think patents encourage innovation?"
His answer was: "There's absolutely no question at all whatsoever."
Which I was certainly a bit suprised by.
Maybe the truest conclusion I can come to is that, well, because he's a patent lawyer and his livelihood is based on that being true, he has every incentive to believe it.
I think it's worth pointing out that Nilay Patel is a laywer. [EDIT: non-practicing lawyer, never a patent lawyer] It's clear to me when I read his writing on the subject as well as when I hear him talk about it on the podcast that he's so far from my own thinking on this as to be almost incomprehensible.
I've slowly been reading this: http://www.dklevine.com/general/intellectual/against.htm
But it seems to be light on data. Seems to me that theoretical arguments are well established and fairly strong on both sides at this point. Does anyone know of any empirical studies that have been done on the subject? Is that even possible? Any strong natural experiments?
His answer was: "There's absolutely no question at all whatsoever."
Which I was certainly a bit suprised by.
Maybe the truest conclusion I can come to is that, well, because he's a patent lawyer and his livelihood is based on that being true, he has every incentive to believe it.
I think it's worth pointing out that Nilay Patel is a laywer. [EDIT: non-practicing lawyer, never a patent lawyer] It's clear to me when I read his writing on the subject as well as when I hear him talk about it on the podcast that he's so far from my own thinking on this as to be almost incomprehensible.
I've slowly been reading this: http://www.dklevine.com/general/intellectual/against.htm
But it seems to be light on data. Seems to me that theoretical arguments are well established and fairly strong on both sides at this point. Does anyone know of any empirical studies that have been done on the subject? Is that even possible? Any strong natural experiments?
"It is difficult to get a man to understand something when his salary depends upon his not understanding it."
--Upton Sinclair
Yeah, I've been thinking about how perverse legal systems are by fundamental nature.
Laws are made (to some large degree), argued, and adjudicated by lawyers. The more laws there are, and the more complex legal system as a whole gets, the more we need lawyers and the more lawyers we need.
Seems to me like the definition of a vicious cycle. There are no controls. Are controls even possible?
Laws are made (to some large degree), argued, and adjudicated by lawyers. The more laws there are, and the more complex legal system as a whole gets, the more we need lawyers and the more lawyers we need.
Seems to me like the definition of a vicious cycle. There are no controls. Are controls even possible?
Hmmm, "There's absolutely no question at all whatsoever." is a statement about the certainty of his answer, but it doesn't seem to be an answer to your question. Was the answer yes?
I think the occupation of lawyers and programmers are oddly similar. Both are paid for precise analysis and generation detailed interpretations. They just happen to speak different languages and their implementations run on vastly different platforms.
I think the occupation of lawyers and programmers are oddly similar. Both are paid for precise analysis and generation detailed interpretations. They just happen to speak different languages and their implementations run on vastly different platforms.
Just to clarify, Nilay was a lawyer prior to Engadget, but he's no longer practicing.
Also, I believe his specialty was copyright, not patent, law.
Based on what I've heard him say on the podcast and read in this essay, it seems to me that his main objective is to show that this is a complex issue that can't be simplified down to "good" or "bad".
Also, I believe his specialty was copyright, not patent, law.
Based on what I've heard him say on the podcast and read in this essay, it seems to me that his main objective is to show that this is a complex issue that can't be simplified down to "good" or "bad".
Right, I didn't mean to imply that he's a practicing lawyer (since he's clearly a writer and editor for This Is My Next/Verge, but it was foolish of me to expect everyone else to know that) or that he was a patent lawyer.
What I meant by that part of the comment is that from what I've heard and read by him, he seems so thoroughly entrenched in his perspective as a lawyer that the system in place is just how it is, that he has trouble even understanding systemic criticism of the system itself.
And my reading of the main objective you attribute to him isn't so much to introduce the complexity of the situations so much as to tell people to quit arguing about things that they're not experts on. Leave it to the lawyers in other words.
I think that's a fair sentiment to a degree. People definitely do seem to join one camp or another based on very simplistic versions of arguments, with very shallow understanding of the subjects at hand. But it doesn't seem useful to me to tell people to stop doing that. What seems more useful to me is try to educate people on the complexities of the issue so that you can elevate the people who are amenable to education. Ignore the others.
It's perfectly valid to tell stupid people that they're being stupid. But does it add anything meaningful to the conversation?
I just don't see Nilay ever addressing the actual, valid, fundamental criticisms of the patent system.
What I meant by that part of the comment is that from what I've heard and read by him, he seems so thoroughly entrenched in his perspective as a lawyer that the system in place is just how it is, that he has trouble even understanding systemic criticism of the system itself.
And my reading of the main objective you attribute to him isn't so much to introduce the complexity of the situations so much as to tell people to quit arguing about things that they're not experts on. Leave it to the lawyers in other words.
I think that's a fair sentiment to a degree. People definitely do seem to join one camp or another based on very simplistic versions of arguments, with very shallow understanding of the subjects at hand. But it doesn't seem useful to me to tell people to stop doing that. What seems more useful to me is try to educate people on the complexities of the issue so that you can elevate the people who are amenable to education. Ignore the others.
It's perfectly valid to tell stupid people that they're being stupid. But does it add anything meaningful to the conversation?
I just don't see Nilay ever addressing the actual, valid, fundamental criticisms of the patent system.
Seems like the time to bring out the old Upton Sinclair quote: "It is difficult to get a man to understand something when his salary depends upon his not understanding it."
Look at countries with strong patent protection - the US.
Look at the EU (which is less patent friendly).
Which has more innovation in software? OK, the US. But that's mostly the result Silicon Valley. And there are a lot of non-US tech companies - Nokia (Finland), RIM (Canada - not sure where they stand), SAP (Germany).
Then there's the open source stuff. Linux (Finland), MySQL (Sweden), PHP (Greenland / Canada), Python (Holland), HTML (from CERN), Pascal, ... lots of innovative stuff gets made in the EU, but the profits tend to be less concentrated.
Well, in fairness: Fortran, C, UNIX, Apache, Perl, and PostGres are basically from US. Also, the GNU movement, but why would the EU need a free software revolution when they didn't have the stifling and secretive culture of the US?
Look at the EU (which is less patent friendly).
Which has more innovation in software? OK, the US. But that's mostly the result Silicon Valley. And there are a lot of non-US tech companies - Nokia (Finland), RIM (Canada - not sure where they stand), SAP (Germany).
Then there's the open source stuff. Linux (Finland), MySQL (Sweden), PHP (Greenland / Canada), Python (Holland), HTML (from CERN), Pascal, ... lots of innovative stuff gets made in the EU, but the profits tend to be less concentrated.
Well, in fairness: Fortran, C, UNIX, Apache, Perl, and PostGres are basically from US. Also, the GNU movement, but why would the EU need a free software revolution when they didn't have the stifling and secretive culture of the US?
In response to Nillay I left this brief comment:
Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.
You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(http://www.cs.cornell.edu/home.... The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)
The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).
Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.
And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.
Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.
You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(http://www.cs.cornell.edu/home.... The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)
The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).
Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.
And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.
Mark Lemley wrote an entire paper on patents being ignored:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999961
> both researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999961
> both researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT.
No one reads them. Nobody reads patents.
I do. I do with some regularity, and each time I come away more convinced that the majority of the press and discussion on the subject is complete garbage precisely because people don't bother to read them.
You give the PageRank example, missing though that there was work from IBM that was very similar.
There was a lot of similar work. There is always similar work. You'll find examples of it in the references section of the patent that nobody reads. Including:
'Jon M. Kleinberg, "Authoritative sources in a hyperlinked environment," 1998, Proc. Of the 9.sup.th Annual ACM-SIAM Symposium on Discrete Algorithms, pp. 668-677.'
I do. I do with some regularity, and each time I come away more convinced that the majority of the press and discussion on the subject is complete garbage precisely because people don't bother to read them.
You give the PageRank example, missing though that there was work from IBM that was very similar.
There was a lot of similar work. There is always similar work. You'll find examples of it in the references section of the patent that nobody reads. Including:
'Jon M. Kleinberg, "Authoritative sources in a hyperlinked environment," 1998, Proc. Of the 9.sup.th Annual ACM-SIAM Symposium on Discrete Algorithms, pp. 668-677.'
And what do you do after you read a patent? Clearly, not building useful products that use those ideas, because a patent expressly prohibits you from doing that.
The part of the argument you're missing is that patent were intended to "promote the progress of science and useful arts" and, as they're practiced today, are doing the exact opposite: delay the progress and useful arts.
In software, if I can't use an idea for 20 years, it's useless. I would rather take my chances, think about the problem and come up with my own solution. Unfortunately, because of onslaught of patents, that solution is more and more likely to have been patented by someone else.
As a practitioner of software arts and science, I not only don't have the time to sift through thousands of patents, but I also risk potentially fatal damages by independently coming up with ideas of my own.
That is the cost of patents and it's becoming unbearable.
The part of the argument you're missing is that patent were intended to "promote the progress of science and useful arts" and, as they're practiced today, are doing the exact opposite: delay the progress and useful arts.
In software, if I can't use an idea for 20 years, it's useless. I would rather take my chances, think about the problem and come up with my own solution. Unfortunately, because of onslaught of patents, that solution is more and more likely to have been patented by someone else.
As a practitioner of software arts and science, I not only don't have the time to sift through thousands of patents, but I also risk potentially fatal damages by independently coming up with ideas of my own.
That is the cost of patents and it's becoming unbearable.
I agree completely. One of the key problems with software patents is the very idea that an algorithm is deemed worthy of patent protection simply because it is not obvious to the "average practitioner" of the art. But what skills/level of creativity constitute "average"? What if you have a company, like Google, whose core hiring principle is to find people who have above average skill and creativity? This seems to set up a perverse disincentive to hire smart people because the smarter they are, the more likely they are to rediscover on their own an idea that is already patented and thus violate it.
The fact is that if the idea patented truly is the best way of doing something then a lot of smart and above average developers are likely to unknowingly bump into that idea out of necessity. And this seems to be a problem that is unique to software patents precisely because of the closeness of software to mathematics itself. Some algorithms are provably optimal for a particular problem which means that everybody smart enough that faces that problem will solve it the same way. If you're smart enough to come up with the best way of doing something on your own but can not use it because it was patented then you're forced into a wasteful outlay of creativity just trying to work around the patent. I don't see this as spurring innovation or at least not worthwhile innovation.
The fact is that if the idea patented truly is the best way of doing something then a lot of smart and above average developers are likely to unknowingly bump into that idea out of necessity. And this seems to be a problem that is unique to software patents precisely because of the closeness of software to mathematics itself. Some algorithms are provably optimal for a particular problem which means that everybody smart enough that faces that problem will solve it the same way. If you're smart enough to come up with the best way of doing something on your own but can not use it because it was patented then you're forced into a wasteful outlay of creativity just trying to work around the patent. I don't see this as spurring innovation or at least not worthwhile innovation.
The references section is actually a big problem with patents. Having worked with attorneys in the past on patents, they actually want you to find all prior art and to put it in the references of the patent. Why? Because patents are rarely invalidated due to 3rd party prior art listed in references -- even if it really would invalidate the patent looked at objectively. But it effectively takes that prior art off the table for future litigation.
I'd be surprised if Google didn't list Kleinberg's work as it was really well known in academic circles at the time. But if Google ever sued you with PageRank, and you tried to say, "Look -- prior art in Kleinberg!" They'd just say, "The USPTO already examined it and determined it isn't prior art. Sorry." You could almost certainly do a better job than the examiner in looking at the evidence, but the burden is proof is so high for you at this point that unless Larry Page wrote in his code, "This is a copy of Kleinberg's work that we slipped past the UPSTO" you're not likely to invalidate it.
I'd be surprised if Google didn't list Kleinberg's work as it was really well known in academic circles at the time. But if Google ever sued you with PageRank, and you tried to say, "Look -- prior art in Kleinberg!" They'd just say, "The USPTO already examined it and determined it isn't prior art. Sorry." You could almost certainly do a better job than the examiner in looking at the evidence, but the burden is proof is so high for you at this point that unless Larry Page wrote in his code, "This is a copy of Kleinberg's work that we slipped past the UPSTO" you're not likely to invalidate it.
I don't buy that at all. "Look -- prior art in Kleinberg!" is your opinion, not some kind of objective truth that was nefariously "slipped past" the patent office. The differences between PageRank and that prior work are crucial--they are what the patent actually covers.
Besides the fact that they're written by lawyers, a major reason software patents use such odd, useless jargon is because algorithms aren't actually meant to be patentable, but the PTO will let them through if they sufficiently submerge the algorithm in a sea of other gunk.
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Regarding vi, most vi users use vim, which dates only to 1988, on the Amiga. The unix port of vim is less than 20 years old.
http://en.wikipedia.org/wiki/Vim_%28text_editor%29#Release_h...
http://en.wikipedia.org/wiki/Vim_%28text_editor%29#Release_h...
Declaring opposing opinions to be knee-jerk must be the oldest trick in the world.
Phrases like these infuriate me: "lazy conventional wisdom that the patent system is broken beyond repair". No, it's not lazy. Smart people have devoted a lot of thought to this, and while some arrive at the conclusion that patents are a net benefit, that is far from the only conclusion that thinking people would be able to reach.
Phrases like these infuriate me: "lazy conventional wisdom that the patent system is broken beyond repair". No, it's not lazy. Smart people have devoted a lot of thought to this, and while some arrive at the conclusion that patents are a net benefit, that is far from the only conclusion that thinking people would be able to reach.
In addition, those phrases just make it difficult for the people who you are trying to persuade to listen to you. I really struggled to read this article, but it's hard to think clearly when the author is constantly calling you a lazy moron.
In the end, the only people who finish the article are the people who already agree with you, now even more confident that they are right and the opposition are all idiots.
In the end, the only people who finish the article are the people who already agree with you, now even more confident that they are right and the opposition are all idiots.
What is broken beyond repair about the patent system as it stands today? As far as I am aware there are two problems patent length is too long, and the patent office is approving things they shouldn't. Both are easily fixable. First shorten patent terms to say 5 years. Second revamp the patent office so that fewer bullshit patents get through, perhaps a filing fee instead of an issue fee among other things.
Sure easier said than done but no harder than convincing the country to do away with patents altogether.
Sure easier said than done but no harder than convincing the country to do away with patents altogether.
One of his supporting arguments cuts both ways.
Apple's patent on "hand scaling velocity" simply gives a mathematical formula for the sentence: "scale at a speed proportional to how fast the fingers are moving."
There is nothing groundbreaking or advanced about the math here, or the idea behind it. Anyone implementing a multi-touch screen is likely to come to discover that a fixed scaling speed sometimes feels sluggish or awkwardly fast, and so that speed should adjust based on user input. And now, without realizing it, they've infringed on Apple's IP and are open to being sued.
Apple's patent on "hand scaling velocity" simply gives a mathematical formula for the sentence: "scale at a speed proportional to how fast the fingers are moving."
There is nothing groundbreaking or advanced about the math here, or the idea behind it. Anyone implementing a multi-touch screen is likely to come to discover that a fixed scaling speed sometimes feels sluggish or awkwardly fast, and so that speed should adjust based on user input. And now, without realizing it, they've infringed on Apple's IP and are open to being sued.
Yes, the math he shows there from Apple's patent looks very obvious. Anyone looking to implement detection of multiple touches on a touchscreen would end up with basically those equations, or others that are functionally equivalent to them.
I want to give TFA's author more credit, but I worry that he is just copy-pasting some math, in hopes that math will just look incomprehensible and hence novel. But that a patent has some equations in it doesn't make it novel. This math certainly isn't.
If you want an example of a patent that actually does have nontrivial math, then the MP3 patents for example qualify. (Whether you think even that should be patentable is of course still an open question - but at least the math in the MP3 patents isn't obvious.)
I want to give TFA's author more credit, but I worry that he is just copy-pasting some math, in hopes that math will just look incomprehensible and hence novel. But that a patent has some equations in it doesn't make it novel. This math certainly isn't.
If you want an example of a patent that actually does have nontrivial math, then the MP3 patents for example qualify. (Whether you think even that should be patentable is of course still an open question - but at least the math in the MP3 patents isn't obvious.)
> simply gives a mathematical formula
For a lot of people, 'simple' and 'mathematical formula' is practically an oxymoron. I know, I know, it's a cliche to point it out, but it also illuminates the heart of the problem: The patent examiners are too overworked to pick up on the obviousness, and it doesn't look obvious to most people. It looks densely complex and inscrutable to most people. (The notion of whether we need to allow patents to be densely complex and inscrutable in the first place is another issue.)
Therefore, it's difficult to communicate just how bad the patent is to enough people to convince lawmakers to change the system.
For a lot of people, 'simple' and 'mathematical formula' is practically an oxymoron. I know, I know, it's a cliche to point it out, but it also illuminates the heart of the problem: The patent examiners are too overworked to pick up on the obviousness, and it doesn't look obvious to most people. It looks densely complex and inscrutable to most people. (The notion of whether we need to allow patents to be densely complex and inscrutable in the first place is another issue.)
Therefore, it's difficult to communicate just how bad the patent is to enough people to convince lawmakers to change the system.
An interesting article, but I think its main point can be summed up as "Look at all these dumbos holding signs saying to end slavery, when interviewed they can't even give good reasons! Haha, here's a few reasons why slavery is actually good!"
Nearly every big cause, right or wrong, has its supporters that may have just happened to be on that side, or thought about it seriously once and have since forgotten the details, or indeed have written many essays or books about the subject. I'm sure there are pieces more elegant and detailed than this that argue for abolishing the patent system; characterizing a position by the existence of uninformed supporters seems useless to me since pretty much all positions have those. The sentiment of educating the masses is nice, and I can agree with it, but on the other hand this is why we have skill specialization--I can give some money to someone who has spent lots and lots of time on the issues to continue their fight, I don't have to spend the same amount of time myself.
I know basic algebra looks brilliant to most ordinary people scared of math but I thought "Patents publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history, and it’ll all be free for the taking in several years" particularly amusing after the Apple screenshot. For startups and other companies outside the Valley (where there's a strong sense of sharing), how often do actual game-changing things get patented instead of made into a trade secret?
Nearly every big cause, right or wrong, has its supporters that may have just happened to be on that side, or thought about it seriously once and have since forgotten the details, or indeed have written many essays or books about the subject. I'm sure there are pieces more elegant and detailed than this that argue for abolishing the patent system; characterizing a position by the existence of uninformed supporters seems useless to me since pretty much all positions have those. The sentiment of educating the masses is nice, and I can agree with it, but on the other hand this is why we have skill specialization--I can give some money to someone who has spent lots and lots of time on the issues to continue their fight, I don't have to spend the same amount of time myself.
I know basic algebra looks brilliant to most ordinary people scared of math but I thought "Patents publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history, and it’ll all be free for the taking in several years" particularly amusing after the Apple screenshot. For startups and other companies outside the Valley (where there's a strong sense of sharing), how often do actual game-changing things get patented instead of made into a trade secret?
> [disclosure is] an important way the patent system encourages innovation, actually: it forces inventors to build alternative ways to do things
Are you sure it is not just a way of forcing people to waste effort making something different when there is a perfectly good solution ready to use? Is it not better to be building on things rather than around them? and having invention driven primarily by demand not by obstacles?
> Stop offering patent protection and there’s no more required disclosure -- all this stuff stays locked up as trade secrets
Are you sure it is not the likeliness of keeping the secret that dominates here? That is, if you think you can keep an invention secret for longer than a patent term, you will choose that instead of a patent -- since it will give you a longer monopoly. And if you think you cannot keep the secret, patent disclosure does not help anyone else that much, since the secret was going to leak anyway.
The supposed rational is one thing. Whether it actually works that way is another -- and there is no clear proof that it does work.
Are you sure it is not just a way of forcing people to waste effort making something different when there is a perfectly good solution ready to use? Is it not better to be building on things rather than around them? and having invention driven primarily by demand not by obstacles?
> Stop offering patent protection and there’s no more required disclosure -- all this stuff stays locked up as trade secrets
Are you sure it is not the likeliness of keeping the secret that dominates here? That is, if you think you can keep an invention secret for longer than a patent term, you will choose that instead of a patent -- since it will give you a longer monopoly. And if you think you cannot keep the secret, patent disclosure does not help anyone else that much, since the secret was going to leak anyway.
The supposed rational is one thing. Whether it actually works that way is another -- and there is no clear proof that it does work.
"Because getting a patent means accepting a time-limited monopoly on your invention, anyone will be able to use this specification to build their own search engine when the patent expires in 2018."
This paragraph from the article points out one of the larger issues I have with patents in high-tech, which is the length of the grant. Even ignoring the fact that simply reading patent claims is a VERY long way away from working code and related infrastructure, the lapse of the patent plus the knowledge from the patent would only be good for helping you to implement Google's algorithm as it existed in 1998(!). Forget about 2018, Google's algorithms (while still built on similar concepts) are known to be very different today or even 4 years ago than they were in 1998.
By granting such a long term to patents you are not just blocking competitors from the core claim, but also any innovations you make while the patent is active, assuming enough of the original invention remains that anything else that uses your non-filed tweaks would still be in violation of the original process.
Result? You could (assuming reading a patent magically allowed you to actually recreate the system) recreate 1998 Google in 2018. Approximate value of that 'knowledge gift to society' IN 2018? $0! You're 2 decades behind where you need to be if you're starting at the original core invention.
BTW, I don't mean for any of this to be a knock on Google, PageRank is simply the example the original article decided to use. Google remains one of the only big software-related corporations whose patent usage/enforcement hasn't yet been destructive to the industry as a whole.
This paragraph from the article points out one of the larger issues I have with patents in high-tech, which is the length of the grant. Even ignoring the fact that simply reading patent claims is a VERY long way away from working code and related infrastructure, the lapse of the patent plus the knowledge from the patent would only be good for helping you to implement Google's algorithm as it existed in 1998(!). Forget about 2018, Google's algorithms (while still built on similar concepts) are known to be very different today or even 4 years ago than they were in 1998.
By granting such a long term to patents you are not just blocking competitors from the core claim, but also any innovations you make while the patent is active, assuming enough of the original invention remains that anything else that uses your non-filed tweaks would still be in violation of the original process.
Result? You could (assuming reading a patent magically allowed you to actually recreate the system) recreate 1998 Google in 2018. Approximate value of that 'knowledge gift to society' IN 2018? $0! You're 2 decades behind where you need to be if you're starting at the original core invention.
BTW, I don't mean for any of this to be a knock on Google, PageRank is simply the example the original article decided to use. Google remains one of the only big software-related corporations whose patent usage/enforcement hasn't yet been destructive to the industry as a whole.
If Title 35 was a good description of what the US patent system was like in practice then our patent system would still be working.
I think this is a healthy perspective. Far better than the knee-jerk "patents are evil" perspective we see so much of today.
Thank god someone is actually thinking about it in an informed way and fighting back against a dogmatic (and frequently extremely poorly informed) abolitionist position.
This is an extremely well-thought-out defense of the value of patents, and it presents the issues as nuanced problems that need to be resolved with careful thought.
I have long thought, as the author does, that a ban on "software patents" is extremely short-sighted, given that pretty much any physical object can be represented by equations or software. I really love his example of a beer bottle with a particular neck shape dictated by fluid mechanics equations.
His thoughts on patent trolls are also very welcome -- if we truly believe that intellectual property has value, then we have to allow it to be bought, sold and asserted. But, it does seem reasonable to tie damages to lost revenue or other actual business costs, which non-practicing entities would not have.
I have long thought, as the author does, that a ban on "software patents" is extremely short-sighted, given that pretty much any physical object can be represented by equations or software. I really love his example of a beer bottle with a particular neck shape dictated by fluid mechanics equations.
His thoughts on patent trolls are also very welcome -- if we truly believe that intellectual property has value, then we have to allow it to be bought, sold and asserted. But, it does seem reasonable to tie damages to lost revenue or other actual business costs, which non-practicing entities would not have.
I'm not sure what the title is supposed to mean. FTA "The solution is simple, of course: we just have to add a real software patent section to Title 35. " I guess he's trying to say the patent system isn't broken, but here's how I would go about fixing it.
> most important and disruptive inventions in the history of the world
Hyperbole much? PageRank, really? The Internet, yes is one of the most important and disruptive inventions. One companies algorithm for sorting search results. A company that's only been around for a decade or so. Search is huge, Google is huge, but they and esp their pagerank agol ain't close to being one of the most important and disruptive inventions in the world.
Hyperbole much? PageRank, really? The Internet, yes is one of the most important and disruptive inventions. One companies algorithm for sorting search results. A company that's only been around for a decade or so. Search is huge, Google is huge, but they and esp their pagerank agol ain't close to being one of the most important and disruptive inventions in the world.
Summary by one sentence of the article: "Now, I’m not a software developer, mathematician, or patent expert". That reads in other parts of the text... and even in the poor choice of patent excerpts.
Some parts are naive at a rare level, e.g.: "Those rules might actually solve the software patent dilemma for us if we just wait long enough: the gold rush to patent all these fundamental software technologies means that they’ll all be public domain prior art in a few years, and any obvious improvements won’t be patentable. The pendulum swings both ways."
And the long rant about software patent not being explicitly defined in the law and that fact being considered as an important advance in the discussion -- well did anybody did not know that? And even if it was the case, does that make the general discussion about the goodness or badness of patenting software irrelevant in any way?
Some parts are naive at a rare level, e.g.: "Those rules might actually solve the software patent dilemma for us if we just wait long enough: the gold rush to patent all these fundamental software technologies means that they’ll all be public domain prior art in a few years, and any obvious improvements won’t be patentable. The pendulum swings both ways."
And the long rant about software patent not being explicitly defined in the law and that fact being considered as an important advance in the discussion -- well did anybody did not know that? And even if it was the case, does that make the general discussion about the goodness or badness of patenting software irrelevant in any way?
If a system does not work for the population it is intended for, who
is to blame? The population, or the system?
It does not matter. In any case, to make it work, you need to change either the system or the population. I am quite sure that changing the population is not realistic at all.
Note that this leaves aside the concrete issue, in which I believe that the blame rests mostly on the system, which failed to understand the motivation of people. It does not matter, though (see above).
It does not matter. In any case, to make it work, you need to change either the system or the population. I am quite sure that changing the population is not realistic at all.
Note that this leaves aside the concrete issue, in which I believe that the blame rests mostly on the system, which failed to understand the motivation of people. It does not matter, though (see above).
"is broken" equates to "allows or encourages something that wasn't originally intended". That's an apt description of the patent system and the current situation.
IP is the problem. Software patents are a mess cause we've convinced ourselves that owning intangible thoughts and ideas is keen!
Wow. the equation for computing of the hand scaling velocity is a gem. It computes, when translated, how much the distance between the fingers changed per the time interval... or... yes, hand scaling velocity!
I hesitate to call this an "advanced technology". It's a kind of calculation we'd have done during what amounts to college years in the US.
I stopped reading there.
I hesitate to call this an "advanced technology". It's a kind of calculation we'd have done during what amounts to college years in the US.
I stopped reading there.
Yes, he seems to think Apple's got some magic system in there, not realizing that it's just a basic calculation that anyone else solving that problem would have come up with.
I bet if you put 10 decent programmers in a room, more than half come up with the same thing. That's true of SO many software patents.
I bet if you put 10 decent programmers in a room, more than half come up with the same thing. That's true of SO many software patents.
Out of all the articles about patents that get posted on HN, this is one of the most knowledgeably written I've seen.
I read most of the article, and I think it is as flawed as his title. Of course, we aren't broken. If anything is broken, it is the system. If there is a problem between us and the system that we have created, then it is the system that we should change, not us.
can anyone tell me what are repercussions of simply disallowing selling of patents?
I mean if they just allow only inventors themselves to license their patents and don't allow IV/Lodsys kind of companies to own patents they didn't invent.
Won't that solve half of the problems?
I mean if they just allow only inventors themselves to license their patents and don't allow IV/Lodsys kind of companies to own patents they didn't invent.
Won't that solve half of the problems?
This would prevent the economic separation of inventor from producer. That separation is key for specialization and therefore economic efficiency.
There's no reason that a scientist/inventor in a laboratory is going to be any good at running a business selling his invention, just like there's no reason a farmer is (or should be) any good at running a grocery store. It's much more efficient for the farmer to simply sell his produce wholesale to the distributors so he can concentrate on farming.
Don't take offense at this, but I think this idea (that the problem with the patent system is the separation of inventor and producer) is especially prevalent within the start-up community. Such entrepreneurs are used to thinking of the entire process as occurring in their figurative basement: identification of the problem, invention, patenting, production, and sales. When this is possible, it's awesome...but it's not usually possible. In many industries/disciplies, each one of these steps is done by a different person (who are very good at it because they are specialized) so it is crucial that they are able to capture their value-added at each step.
There's no reason that a scientist/inventor in a laboratory is going to be any good at running a business selling his invention, just like there's no reason a farmer is (or should be) any good at running a grocery store. It's much more efficient for the farmer to simply sell his produce wholesale to the distributors so he can concentrate on farming.
Don't take offense at this, but I think this idea (that the problem with the patent system is the separation of inventor and producer) is especially prevalent within the start-up community. Such entrepreneurs are used to thinking of the entire process as occurring in their figurative basement: identification of the problem, invention, patenting, production, and sales. When this is possible, it's awesome...but it's not usually possible. In many industries/disciplies, each one of these steps is done by a different person (who are very good at it because they are specialized) so it is crucial that they are able to capture their value-added at each step.
I could not follow all the ramble, but he seems to think that patents are just fine, and all we have to do is implement the law better. But if the law isn't implementable or understandable by mere mortals, the law is wrong.
Tl;dr version: Look at all this useful math disclosed thanks to software patents.
Thanks to Apple I will never have to re-derive first order finite difference formulas!
Is it me or is there a mistake in the cited part of that patent too:
"where d(FI[n],FO[n]) is the squared Euclidean distance between the fingers"
The formula that is then given is under a square root, i.e. it is the Euclidean distance NOT the squared Euclidean distance.
"where d(FI[n],FO[n]) is the squared Euclidean distance between the fingers"
The formula that is then given is under a square root, i.e. it is the Euclidean distance NOT the squared Euclidean distance.
Random idea: What if all software patents were required to include an executable code example demonstrating the patented concept?
I don't think the problem with software patents is that the inventor didn't necessarily made the code before.
Quite the contrary, some of the most controversial software patents are in fact so simple that you learn that in CS 101 or by yourself. Some other are just plain common sense.
But I agree it could help a tiny little bit with claims such as: "1) A mean of broadcasting current mood and menial activities using text messages. 2) 1 over the internet. 3) 1 over a portable device" (fictious, or maybe not?)
But still, my friend told me he could have made Twitter in two days.
Quite the contrary, some of the most controversial software patents are in fact so simple that you learn that in CS 101 or by yourself. Some other are just plain common sense.
But I agree it could help a tiny little bit with claims such as: "1) A mean of broadcasting current mood and menial activities using text messages. 2) 1 over the internet. 3) 1 over a portable device" (fictious, or maybe not?)
But still, my friend told me he could have made Twitter in two days.
The ideas that Nilay puts forth as good examples of patents are held up here to be bad examples.
Why is that?
Because Nilay doesn't understand why these patents are obvious.
Which is the whole fucking problem with the patent system Nilay:
People like you saying "Well, these patents look reasonable to me, so why are you people who do this for a living complaining?"
Why is that?
Because Nilay doesn't understand why these patents are obvious.
Which is the whole fucking problem with the patent system Nilay:
People like you saying "Well, these patents look reasonable to me, so why are you people who do this for a living complaining?"
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What an insulting and unfounded statement. The arguments against software patents are strong and coherent. Intelligent people can disagree in good faith about the issue, but labeling the anti-software patent position a "completely vacuous cop-out" is unjustified rhetoric. So far as I can see, he doesn't really provide anything other than "math is hard, companies spend money on it" to support a contrary position, and the philosophical point that physical inventions are based on mathematical physics is true but outside the scope of legal reasoning.
The whole piece irritates me, because it is really just repeating the standard arguments for the utility of the patent system in general which all serious participants in the debate already know. The implication is that opponents of software patents are just too ignorant to know the basic issues - which may be true enough of Random Internet Commentators, but is certainly not true of the many experts who are opposed to software patents.