I'd argue that, rather than banning software patents outright, the process by which these patents are approved should be put under high scrutiny and changed. For a lot of large companies, the approach really is similar to throwing everything against the wall and seeing what sticks. Having gone through the process recently, I'm amazed at how easy it is for an engineer to conceive an idea, pitch it to a few paralegals and lawyers, and get it written up to submit to the USPTO. IMHO, there's a big disconnect between the engineering minds that actually come up with legitimate patentable ideas and the IP attorneys that write and file the patents.
Getting rid of software patents altogether is quite extreme. You need a mechanism in place to protect the property rights of individuals and corporations. When there's absolutely no sense of preservation of property - whether it be tangible or intangible - innovation and risk taking are going to suffer.
The software companies themselves often argue that they don' really want software patents. However, the fact that other can file patents puts them into a position where they need to file patents themselves for protection. It's just a stupid arms race. Now and then, a patent troll with noting to lose shows up and shakes up the picture. You could call it a sort of IP terrorism :-)
IIRC i4i is not a patent troll. It's a company with real products, users and - and that prevents it from being called a patent troll - probably licenses the patents from others.
I am all in for banning obvious or bad patents, as well as shortening their duration, but, perhaps, the i4i patents may be really original or innovative.
Microsoft is known for talking partnership, maybe acquisition, learning all they can and then launching a competitor that kills their "partner". Having strategic patents is the only way a small company can defend from this.
Also, I like the way their name sounds. Sounds appropriate.
I mean, they're not a troll in the way that they're developing their product, but they're a troll in the way that their patent is for a way of editing custom XML. Really?
I'm not so sure that patents on software are any more or less "silly" than patents on real (physical) devices. What is it about software patents that makes them inherently different from patents in general? Obviously, there are arguments for and against the patent system as a whole, but are there any that apply only to software patents?
I know there's a rich tradition of objecting to patents on software, but it always strikes me as odd that people think that software is some kind of exception, and that other patents are OK.
The public cost of a patent is the monopoly it provides. The public benefit is that the invention is eventually released into the public domain.
Take the pharmaceutical companies as an example of where patents are perhaps worthwhile:
- It costs a lot of money to produce a new drug; high cost == high risk == unattractive field for investment. Patents lower the risk because the pharmaceutical companies know that they will be able to recoup their investment if they actually produce something useful.
- It is comparatively easy to tell if a drug works.
- After the patent expires, the drug is probably still useful...e.g. aspirin hasn't stopped being a good painkiller just because it's a commodity.
Compare this to software patents. None of the points match up:
- Production costs are zero == low risk == attractive field for investment.
- Production time is almost zero. You can submit software patents literally as fast as you can write them up.
- Most software patents are completely intangible and have very fuzzy edges. If you're a patent examiner in 1980, how do you verify that this "web browser" idea will in fact work?
- After 20 years, the patent is likely to be worthless. As a trivial example: yes, people still use GIF but JPEG and PNG are far more common.
All of these things encourage the system we have now--"throw it against the wall", patent trolling, etc--instead of what patents were Constitutionally intended to be: an incentive to grow the arts, sciences, and economy.
Actaully, I wish I could find the link, but there was a study that showed in 2007 that of all the novel chemicals, most were out of university research, and not big pharma. They tend to spend an inordinate amount of money on marketing, which is ludicrous. I mean, if you need medication, the last thing you should be doing is basing it on ads. Your doctor doesn't need asked about latisse or whatever.
In the case of drugs, the patent can be chemically specific. It's easy to tell whether another drug infringes.
Software patents are sufficiently vague that it's hard to tell what they cover. Which has a chilling effect on people making software. How do you know whether you'll be sued?
You (and PG in one of his essays) think this way because you're looking at the end product. But patents aren't about the end product, they're about the human process that leads to that product and its incentives. People come up with algorithms and other mathematical constructs without the need for special government incentives.
It may be true that people come up with algorithms and mathematical constructs without patents as an incentive, but I still don't see how the same incentives (patents) are necessary for people to build novel material goods if they are not necessary for people to build novel software goods.
What I'm left wondering is, what is it specifically (for people who hold that some patents are OK, while software patents are not) that makes software different?
Edit: I just saw dstorrs comment, and I think what he seems to be implying is that patents on software are not comparable to other industries because of the relatively lower barrier to entry, and the relatively higher cost of enforcement. I think that this is a good argument for holding software patents to different standards (i.e. shorter statute lengths and more specificity in the application) than pharmaceuticals, etc. but I still don't see how patents are entirely misguided in the case of software.
Software is different because it's considered a creative work and therefore falls under the veil of copyright. Copyrights protect each implementation individually, and this is ample protection.
Patents generally cover a whole _invention_, not an implementation, and each implementation requires a license from the patent holder. So, in the case of the web browser, had Mosaic or Netscape patented this concept every competitor would be forced to obtain a license from the patent holder and open-source or free browsers would be impossible. Patents in the case of software therefore have a chilling effect and prevent significant competition for a long time.
Pharmaceuticals only get patented by publicly divulging their significant modes of operation; a software patent outlines only vague processes, like the i4i patent that's brought this whole thing up.
Software is also merely a high-level implementation of an algorithm. Algorithms are non-patentable and all math is discovered, not invented; this has been settled earlier, and is the reason that algorithms alone are not awarded patent protection. Software is no different.
In software, the implementation details are significant enough that patent protection is not only undesirable but in fact crippling to the industry as a whole. Take a look at some software patents; in fact, take a look at i4i's patent specifically. It's applicable to basically that edits XML documents, whether it be a word processor, an IDE, or anything else. These things are way too vague and they encroach on prior and future art in a hugely negative way.
See http://w2.eff.org/patent for a list of some rather absurd software patents granted by the USPTO; even if we ignored everything else and assumed that software patents were OK for things that deserved them, the people in charge of patents don't have anywhere near the kind of knowledge necessary to make intelligent decisions.
Those are my reasons for opposing software patents. It makes development a complete minefield, and only the big guys can afford to wade through that. I just have to hope that I don't do anything too successful until the patent laws are revoked or until I make enough money not to care.
Others have already commented on your question, but you'll find me being against all patents in general. If they were serving their intended purpose, maybe, but they don't benefit the little guy, only the big guy.
Don't get me wrong, I'm all for openness and transparency. But I do believe there needs to be some level of legal rights protection, and that it's a pretty fundamental pillar of our capitalist system.
Out of curiosity, what do you (and others) think of a patent for something like Google's PageRank?
I think it's bad, because the patent wouldn't read "Google's PageRank". It would read "A system that ranks cataloged pages by their relevance to a certain search term", which would mean every other search engine would have to license Google's tech.
Copyright already covers specific implementations. That's as far as it needs to go in software.
Well, not really. They'd only have to license it from Google if they implemented their search engine in a manner covered by Google's hypothetical patent.
Of course, apparently Google feels they have more to gain by keeping their algorithm secret than by patenting it.
Well, look at some software patents. The kind of scope and specificity in "a system that ranks cataloged pages..." is about par for the course.
Look at the patent that caused the injunction against Word ( http://www.google.com/patents/about?id=y8UkAAAAEBAJ ); it's rather vague and basically includes anything that uses or modifies XML to create a product for end-user consumption.
The enforcement depends on the judge and the parties to the suit, but it's got a really, really broad potential scope. It's not unique; most software patents are that way. You think that's a good thing?
What right? Copyrights & Patents are not natural in a free market; they're government creations. Remember patents and copyright only exist to encourage people to produce, not because you're entitled to profit from it. As of right now there is very little in the way of evidence that patents in anyway contribute to encouraging people to produce. Most small companies don't even bother patenting ideas because they don't have the time or the money to.
This is a VERY important point: copyright (and other IP) exists to benefit the PUBLIC by promoting the creation of new works. Granting temporary monopolies is a means to that end.
From the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
So: some people may create software, incentivized partly by the prospect of patenting it.
Other people will be unable to create or sell software, because of those same patents.
The question is, which factor is larger? If software patents are decreasing the amount of good software being produced for the public benefit, then the public no longer has a reason to grant them.
Has that point been reached? Many say yes. And the same logic may apply to other areas of IP.
"As of right now there is very little in the way of evidence that patents in anyway contribute to encouraging people to produce."
There are untold exception to this - It's important not to throw out the baby with the bathwater. Drug Patents, in particular, are incredibly important. Large Pharmaceuticals spent decades and billions of dollars on developing, trialing, and getting their new drugs approved. Why on earth would they have any incentive to do that if, once it was approved, they didn't have a temporary monopoly on it?
Remember - Patents are good for only a short period of time, under twenty years in most countries, and after that it's a free for all - anyone can use the process's and systems that were shared and documented.
With all that said - 90% of the software patents really are nothing more than crap - usually consisting of an engineer having an idea that most of their "skilled and educated in the arts" peers could have come up with in less than a week's worth of work and discussion. Public-Key cryptography class patents are few and far between.
If you check out their data from 2006-2008, they spend about 16% of revenue on R&D. They spend about the same on marketing, though in 2007 they spent 23%, which drags the amount up a bit. But...
They spend 30% on SI&A, which stands for "Selling, Information, and Administrative" purposes. This includes "Direct selling expenses are expenses that can be directly linked to the sale of a specific unit such as credit, warranty and advertising expenses. Indirect selling expenses are expenses which cannot be directly linked to the sale of a specific unit, but which are proportionally allocated to all units sold during a certain period, such as telephone, interest and postal charges. General and administrative expenses include salaries of non-sales personnel, rent, heat and lights."
So, you can't _really_ be sure of what they're spending on selling, because it's mixed in with non-sales personell... but bottom line is, they don't spend that much on R&D, not compared with what they're making, anyway.
And they wouldn't have an incentive, but I'd argue that they _shouldn't_. Something as important as drugs should really be one of the legitimate functions of government. If I ran things, I'd be throwing out patents, but turning up NSF funding.
Large Pharmaceuticals spent decades and billions of dollars on developing, trialing, and getting their new drugs approved. Why on earth would they have any incentive to do that if, once it was approved, they didn't have a temporary monopoly on it?
Patents, and Supplementary Protection Certs (SPC) which extend drug patents to 25 yrs in the UK IIRC, are temporary.
Also it's always worth remembering that drug companies spend vastly more (3 times, might even be 4) on marketing than on producing drugs and make humongous profits.
Somewhat hypothetical, but: how difficult is it to reverse-engineer a drug's exact composition with only the final product (the pill/vaccine/etc. itself)? If it's difficult enough to be economically infeasible, then patent protection here could be replaced by simply keeping the drug a secret.
Of course, that kills the generics market, and I suspect it's not such a difficult problem to RE a drug, but... just curious.
They have to disclose the contents to be licensed for medical purposes.
My wife did a stint as a student with AstraZeneca (global pharma corp) they were making "new" drugs. One thing they do is take an existing drug and try swapping out different parts for functionally equivalent parts and run tests to see if the drug is effective enough to warrant proper trials and check to see if it circumvents the opposition patents.
Agreed, I do recognize that patenting physical things has benefits. My earlier post was with respect to software patents only. I'm against patents and copyright for ethical reasons, but software patents have no excuse for existing.
I'm not sure how PageRank always get brought up as the quintessential fair patent. Google most certainly didn't invent the eigenvector of stochastic matrices (and if they did it wouldn't be patentable). The part of PageRank that's patentable seems mostly to be using hyperlinks as an input into known techniques. I don't think its obvious, but I don't think its a clear cut example of something that should be patentable either.
It would in all likelihood simply be called what it is, a citation based ranking algorithm applied to web pages.
The implementation of that algorithm would be googles trade secret but you or anybody else would be free to come up with their own implementation.
Technically speaking google has patented a number with this (the number required to program a universal Turing machine to exhibit the behavior the algorithm describes).
I don't think they should be able to do that.
The fact that microsoft is now prohibited from selling their flagship software means that some people might wake up to the downside, the one that smaller parties have been aware of for a much longer time.
Of course this will most likely simply end with MS buying up the party that sues or some cross license deal but the better outcome would be a total abolishing of software patents.
The formula for Coke is a recipe and recipes aren't copyrightable (in the USA) unless "accompanied by substantial literary expression in the form of an explanation or directions".
> Really? I'd think that most people in software have the opinion that there should be no software patents at all.
Do you have any evidence for this? I know very intelligent people (both software developers and CS researchers) who think that software patents are not only necessary, but moral.
Software is (uniquely?) protected two ways--the source code and object code are both protected by copyright, and the algorithms may be protected by patent. One form of protection should be sufficient.
Arguably, software is also protected by trade secret, either because it's difficult to decompile object code into anything meaningful or because it's hosted and run on a server that no one else is allowed to see.
And the idea of patenting an algorithm is ridiculous. Algorithms are mathematical formulae, i.e. a representation of natural laws. Making them patentable is as pointless as patenting e=mc^2, or Planck constant. For the same reason gene patents are pointless and outright dangerous.
Algorithms are not mathematical formulae. Those are inherent in the universe.
Code is nearly as arbitrary as a novel. It expresses an idea in specific terms. There are lots of ways to write the same program, and lots of possible programs to write. There is only one correct way to write e=mc^2.
1. Algorithms are a representation of logic, not natural laws--something like quicksort is just a priori math, sensible regardless of what your natural laws are.
2. It's merely an application or representation of natural laws to design a steam engine or something too.
But of course, most Ruby and Python applications are safely hidden away on a server you control. Relatively few "closed-source" Ruby and Python applications are distributed directly to the user.
This is based on your assumption that a patent system will actually result in more inventions, than it would otherwise without its existence. It is also based on the assumption that novel inventions necessary mean it should be protected in the market place because of its presumed usefulness. It also mean that you believe an invention can be judged objectivity to be obvious or not.
You also forget the enormous difficulty for reforming the patent system to the economic benefits of the masses due to regulatory capture by special interest. If you want to reform the system, you have to reform the overlying political system that allow such regulatory capture in the first place.
Secondary, I would like to direct your attention to a book called Against Intellectual Monopoly by two economists, Michele Boldrin and David K. Levine, who explains the evidence for why patent and copyright monopolies shouldn't exists in the first place.
Getting rid of software patents altogether is quite extreme. You need a mechanism in place to protect the property rights of individuals and corporations. When there's absolutely no sense of preservation of property - whether it be tangible or intangible - innovation and risk taking are going to suffer.