It's "every man for himself" in the patent world today, as Google is discovering much to its dismay with Android. The flood of junk that today besets the system didn't used to flow through in this way. The combination of an under-funded, inadequately staffed, and not-properly-trained USPTO, antiquated standards of patentability that don't apply to a rapidly changing world of software innovations, judges who shrug their shoulders in passive reactive mode as lawyers push large numbers of ill-conceived cases through their courts, and a Congress that has little or no accountability to anyone beyond the self-interested parties who largely shape its agenda - all these and more have led to a crisis in the patent world that no one seems either willing or able to solve.
I personally don't think the answer lies in abolishing patents because I don't think there is or likely ever will be sufficient impetus behind such an effort to make it happen. There is more hope someday of doing away with software patents but this will take many years given the recent Bilski ruling and Congressional inertia.
I don't pretend to have an answer to this. I suspect that, long term, there needs to be a severe curtailment of software patents, if not an outright abolition, in order to bring the system in line with what it used to be 20+ years ago. I have represented innovators for decades. In the past, I used to tell them: don't copy someone else's code unless you have a right to, watch out about misusing a former employer's IP, etc. and you will be fine. Today, I can't do that. Anyone can wind up infringing all sorts of nebulous patents at any time simply by doing completely independent and innovative work using nothing but one's own skills, knowledge, and talents. That is a very sorry place to be, and it has to change but how and when - that is what is so very frustrating. The author of this piece has the right sense of things but he, like me, winds up at the end basically howling at the moon in frustration over the utterly dispiriting short-term course of events.
I don't understand why Bilski lessens the hope of software patents being done away with. It basically struck down State Street (a part of the ruling that the dissent agreed with) and affirmed the Fed Circuit's ruling that struck down both State Street and Alappat. Aren't we left with Benson, Flook and Diehr as precedent? See http://ourdoings.com/ourdoings-startup/2011-07-28
"Against Intellectual Monopoly" by Boldwin & Levine refutes the argument about patents enabling innovation during the industrial revolution. In fact, the innovation on the steam engine itself was stifled by the original Watt patent.
You beat me to it. David K. Levine is a highly regarded economist and game theorist. Boldwin and Levine state that Watt, like many inventors who obtain patents for inventions that were conceived by several people around the same time, was able to take advantage of the legal system because he was well connected. Watts' case illustrates a pattern that was to repeat itself endlessly: a moneyed inventor makes a minor modification to an existing design, and deploys his superior legal and financial resources to obtain a patent. Nice work if you can get it. James Watt spent more than half of his time litigating against other inventors with superior steam engine designs while he held the patent. When Watts' patent expired, he went into business consulting on steam engine operation--a business model similar to open source software consulting today. Marconi had the legal and financial resources to wrest the patent for radio from Tesla. Marconi's innovation was the addition of a ground wire. Tesla was posthumously awarded the patent by the US Supreme Court when Marconi's company sued the United States for the wartime use of radio.
Based on this, it seems that patents in any field tend to retard innovation as opposed to promoting it. Perhaps it's not just the software patent system that needs to be re-evaluated (and possibly scrapped altogether). Can anyone name any cases where patents have, beyond a shadow of a doubt, actually encouraged progress? I'm foreseeing that the pharma industry will be brought up but I will pre-emptively point people to this article as a retort - http://www.theatlantic.com/magazine/archive/2010/11/lies-dam...
I agree. I liked his post and I mostly agreed with his views, except that one that patents enabled the industrial revolution. I don't think that's true at all. I think progress in technology (and in other fields as well) happens by building something and then allowing others to build upon it. Having a patent is not the main reason someone wants to build something or to bring it to market - not even close.
This is a good video on this (about how the steam engine, the light bulb, Ford automobiles, and other breakthrough inventions came to life):
The point of patents was exactly to allow others to build on innovations by rewarding disclosure with a time-limited monopoly. Before there were patents, the only protection against copies was to keep innovations secret, possibly forever while you try to think of a way to exploit them without disclosing them.
It is not entirely clear that patents would help much in that.
If it is not possible to keep something secret, patents would only help if people otherwise really would keep inventions secret. But there are ways to gain even without secrecy -- first-mover advantage, etc. -- and inventors would be attracted to those rather than nothing at all.
If it is possible to keep something secret, then those motivated by the gains from patents would choose secrecy in preference, since secrecy is an even stronger monopoly.
I disagree that getting patents in this environment is hypocrisy. Not filing for them is simply unilateral disarmament, and that again does nothing but benefit the big guys.
(If failing to file for a patent could be guaranteed to have the result that the patent you never filed for would never exist, this might be a valid move, but what it means is simply that somebody else grabs it. No net gain.)
Second, if we're going to convince Congress and society at large, it is actually a more powerful argument to say "Look, we have this protection, this legally-granted monopoly, but we don't want it" than to say "We don't have patents, and we want you to take it from that guy over there". The second sounds like whining more than a good argument.
The correct move seems to me to be to snap up every patent you can, then use them only defensively.
What do you do as a developer in a large corporation where you have zero control over how the patent with your name attached to it gets used? The higher-ups will give you the MAD defense argument, which is fine, except that they're not restricted to that use case. They can do whatever they want, and you can't be sure that they aren't going to bulldoze over some smaller company with it later on.
File anyway, for the second reason I gave. Your name on a patent makes your argument against the patent you have that much more effective.
I'm basing this on the assumption that you're not willing to quit over this issue, which I'm not advocating for. Protesting is good, but I prefer effective protesting to protests that make you feel good, and right now sitting on your hands does nothing. If you don't patent it, somebody else will, and you won't have any more control over that patent, either.
> Your name on a patent makes your argument against the patent you have that much more effective.
That is crazy talk.
Here's an analogy. We're in the 19th century. Someone with analogous views to yours says an abolitionist should become a slaveholder to be a more effective advocate for abolition. An abolitionist who through an accident of birth inherits an estate with a holding of slaves might indeed make a more effective advocate against slavery because he stands to suffer immediate financial loss were slavery abolished. That is all true. But it's a completely different thing to say that a would-be abolitionist should actively try to become complicit in the very system he is trying to abolish. Or that the man who is a slaveholder by birth should expand his slave holdings in order to make his potential losses from abolition all the more staggering.
I'm not trying to say that the system of patents is analogous to the system of human slavery on a moral scale. I'm just addressing the tactical issues and whether someone who opposes a system for moral reasons should become complicit in it. There are probably many other examples I could have used, but this is the one that came to mind.
> There's nothing objectionable about obtaining a patent--it's all about how you use it.
I disagree violently. You have to consider the enormous total mass of patents in effect. The fear, uncertainty and doubt resulting from a patent being on the books is the primary drag on entrepreneurship and individual programmer freedom. Even if the current patent holder has a history of non-enforcement, I cannot assume that policy will continue in the future, or that its patents won't be bought up by the Nathan Myhrvolds of the world when the company defaults. Now, if the patent was held by a non-profit organization with an ironclad charter that grants free and unrestricted licenses to all comers, that's much better than the alternative. But it's still far from ideal. Assuming such a trojan horse strategy actually worked on a large scale, it could deter real patent reform. Stopgap measures have a way of doing that. That's what happened with the patent cross-licensing between large companies; they're only starting to complain because cross-licensing is useless with patent trolls.
It's not immoral to obtain a patent. Sure, your company's patent portfolio might end up in the hands of a patent troll. On the other hand, your company might be sued into oblivion in a year because you didn't obtain your patent. In that tradeoff, I'd file the patent. The fact that something can be used for immoral purposes does not make that thing immoral.
Your slavery comparison is also ridiculous. It is only valid to someone who already believes patents are terribly immoral. To anyone else, it comes off as Godwin-lite. I think a more apt analogy would be if you know that a university was a paper mill, but the accreditation board refused to revoke its accreditation. What would you do in that situation? You might obtain your own degree from the institution so that you can say with certainty and with credibility that the university is a sham. It would indeed be immoral to obtain a fake degree for the purpose of defrauding an employer. It would not be immoral to obtain a fake degree to strengthen your argument.
> It is only valid to someone who already believes patents are terribly immoral.
It doesn't assume you believe patents are as immoral as slavery; I already made that specific disclaimer. It assumes that, yes, you do take strong moral exception to software patents.
I work for a small company that is vehemently anti-patent even though we do enough novel work that we could file hundreds of patents each year that would fall in the top percentile of innovation among patents. The company has been around for a long time and some of our products are in very patent-encumbered areas like video and audio codecs. We do license patents from others where necessary; for example, every Miles license we sell includes licenses for Thompson's MP3-related patents.
I didn't say that you had to believe that patents are as immoral as slavery. But you already have to believe that patents are intrinsically terribly immoral before your metaphor makes sense.
And as I said, just because something is sometimes or even often used for immoral purposes does not mean it is intrinsically immoral.
If you're asking me personally, it's because in the first case you're adding to the ever-burgeoning sea of patents and thereby increasing drag on innovation and curtailing programmer freedom. I don't think the kind of sublicensing we do with Thompson is totally without negative consequences in terms of complicity, but it's of much lesser concern to me.
Are you a patent lawyer? A programmer? Both? I'd love to hear your own perspective on this.
For background, my previous job was in a small group of researchers and programmers at NVIDIA. The company had a history of hardware patents but had been pushing more and more for supposedly defensive software patents when I joined. Partly in response to the infamous Creative patent on a robust technique for stencil shadows which had "coincidentally" been filed right after NVIDIA's Cass Everitt had given an invited talk at Creative on that very technique which he had discovered (and John Carmack later independently rediscovered). Anyway, for most of us in DevTech, at least half our time was spent on pure research and prototyping. A colleague in that group, Ignacio Castano, wrote a blog post on programmer responsibility and software patents that you might find interesting: http://www.ludicon.com/castano/blog/2010/11/software-patents...
Patent lawyer, yes. Programmer, not really, just sort of a tinkerer.
That blog post is of course right that a patent attorney can't really write a patent without the help of the inventor. So if you're against software patents, I think it makes sense to put some responsibility on the inventors who help attorneys write them. But I think this line hits the nail on the head: "It’s the benefit of being a good corporate employee, not being considered a trouble maker, not loosing opportunities for promotion, not bringing negative attention to yourself, not going against the tide."
Most people are not willing to put their careers on the line over principles, and that's not going to change. Maybe a handful of the most vehement will, and maybe they're good enough at their jobs to get away with it... but mostly, no. People just go along with what their bosses tell them to do.
The idea about the anti-patents is interesting, but (with that implementation) probably not particularly useful at preventing bad patents from issuing. Patent examiners don't search wikis for prior art--they mostly search the patent literature, and to some extent scholarly articles, textbooks, and things like that. So while a wiki article might be helpful at invalidating a patent in litigation years down the road (assuming the defendant found it and could prove when it was written), it's tough to imagine the circumstances where it gets on an examiner's desk and helps him do his job.
You misunderstand. Ignacio's anti-patents wiki was internal-only and meant to discourage other NVIDIA employees from filing patents for ideas he had already discovered. He was the main (and for a long time the only) software guy working on the tessellation architecture and associated algorithms for DirectX 11 and NVIDIA's Fermi chip. Thus he was something of a vanguard; other internal researchers working on the same front would be likely to make very similar discoveries even if working independently. After all, that's the nature of the overwhelming majority of patents and perhaps the single biggest reason they're a bad idea in practice even if you have no issue with them in principle.
> that's the nature of the overwhelming majority of patents and perhaps the single biggest reason they're a bad idea in practice even if you have no issue with them in principle
I disagree with this (and I have no idea if it's true in the majority of cases, but let's stipulate to that for the sake of argument). If it's a common occurrence that independent researchers tend to invent similar things around the same time, then it strikes me as a positive thing for the law to bestow some advantage on whoever was first. That would tend to spur innovation and patent disclosures, which is the whole point of the patent system.
> If it's a common occurrence that independent researchers tend to invent similar things around the same time, then it strikes me as a positive thing for the law to bestow some advantage on whoever was first. That would tend to spur innovation and patent disclosures, which is the whole point of the patent system.
No. The coincidence of timing is a second-order consequence of the fact that smart people when faced with problems with similar requirements will produce similar solutions. In some cases the requirements are so constrained that not only will the abstract ideas be identical but so will the concrete implementations of those ideas (e.g. write me an optimal 8x8 IDCT for machine architecture X). It is absurd that any reasonably smart fellow who happens to tackle a problem first should be granted a government monopoly on his ideas.
If the goal is public disclosure of knowledge then assuming the problem has any wider relevance it will soon enough be revisited by other similarly smart fellows, so there is little incentive for the discoverer who happened to be first to closely guard his secrets. The gain to society for granting the monopoly in this case is that the knowledge might be disclosed a little sooner than otherwise. The cost is that other and sometimes even smarter fellows cannot develop those ideas further without a license, not even in the context of pure research, never mind business.
That hardly spurs innovation. And as for that, it was never the original purpose of the patent system but is rather a latter-day tacked-on justification for it, but let us suppose that is its principal purpose. Do you see that happening? It's certainly not working in the software world. Elsewhere in the thread there was a reference to a paper debunking some of the classic supposed success stories of patents related to Watt's steam engine and Ford's windshield wipers.
Ah, but now we're just arguing about what constitutes a non-obvious invention. And I would agree that we need better patent examiners making that decision.
Sure, that is a huge and endemic part of the problem. But if that were all, I might believe something of the system could be salvaged. Anyway, this thread has grown too deep already, so let's end it here. Thank you for the discussion.
Comparing having a name on a patent to being a slave owner is crazy talk, as long as slinging around accusations of crazy talk is considered acceptable discourse.
I reject analogies in general, they rarely advance the discourse. Having a patent is having a patent. When it comes time to argue against them, being a stakeholder instead of being someone trying to tear down what society perceives as other stakeholders is going to matter to the society making the decision.
As I said before, I prefer effective protests to feel-good protests. Just bugging out of the system entirely is a feel-good approach, not an effective one. All the same patents exist, except now you're entirely powerless.
The idea of "defensive patenting" is completely wrecked by the presence of non-practicing entities. You can't bargain with patent trolls because they have no need for your IP. All you can do is pay them to go away, either before or after a jury of hayseeds in East Texas forces you to. And there is absolutely no guarantee that the patents you file while working for XYZ MegaCorp will not end up in the hands of a non-practicing entity before they expire. Even the largest companies may be sold, merged, spun off, or liquidated multiple times over twenty years.
All software patents are bad, just as all slavery is bad. And the only way to keep bad patents from being granted is to document and publish your work as widely as you can... which, of course, leaves you even more vulnerable to attack by both trolls and practicing entities.
You're quite right. A patent - particularly the kind of broad process patent common to software - is almost a canonical case of a positional good. Like all positional goods, the pursuit of software patents incentivizes a classic arms race in which no one wins. The solution to an arms race, as Hobbes taught us back in 1660, is a rule of law that guarantees mutual safety and hence eliminates the positional advantage.
Martin Fowler is a well-respected thinker and leader in this field ... Software patents are treated as an asset class that can easily be bought and sold, like a stock or bond. There's a big market for them. And that's a big problem. The acquisition of these assets generally means that the inventor -- the entity that patent laws exist to protect -- is out of the picture, leaving those with big money the ammunition to sue, but perhaps not the ambition to innovate. Patent law is long-overdue for fundamental change.
I don't think this passes economics 101. It's often incredibly hard for an individual inventor to bring their invention to market even with a patent. Freedom to sell or license their patent instead of requiring every inventor to also build a successful startup enhances their incentive to invent and their capability of bringing an invention into the market, in the same way that freedom to sell oil you've extracted from the Earth enhances the incentive to extract oil and increases its availability in the market.
That may be true in other fields, but that argument makes some assumptions about invention and production that don't hold true for software.
First, the notion that production is so expensive that a lone developer cannot realize their idea. This isn't true. Any developer can build and market a product single-handedly, in the majority of niches of the software market.
Secondly, the idea that a patentable idea is born first, and then a product is built based on it. That happens now and then, but it's rare (e.g. RSA patent). The common case is that a developer sets out to build a better mousetrap, delivers a piece of working software, and only afterwards realizes they've had a patentable idea. By that time they also have a marketable product.
If IP rules had been enforced better, the industrial revolution wouldn't have come to America. Samuel Slater, "Father of the American Industrial Revolution") was not famous for inventing stuff, but for successfully sneaking the tech out of Britain, against the rules.
The wikipedia page on the Industrial Revolution cites textiles as one of the three main innovations of the period and notes that the rise of the cotton mill only occurred after the relevant patent on the spinning jenny had expired.
But if it was not for the patent law that helped and incentivized the inventor, the cotton mill innovation might not occur in the first place.
I work for a pharma, and I remembered our CEO discussing patent and generic drugs. Making generics that bring affordable medicine to the public is a very important goal of any pharma. But drug discovery (not manufacturing) is very costly and risky, and patent is the only vehicle to financially recover the cost of developing a new product and fund the effort of finding new cures.
I am not taking side in the software patent debate, but am just saying patent has its own value in promoting innovation in making it financially feasible for things that require lots of effort and resources.
Discussions like this strike me as pointless. It's pretty easy to imagine a better patent system. We don't have one because incumbents who benefit from the current system have disproportionate influence over the politicians who could reform the system. Until that problem is solved, this and many other broken systems will never be reformed.
Blaming individual programmers for patent applications, which are probably incentivized by their employers, seems harsh. This isn't a problem that's going to be solved by a some optimistic idealists.
Sure, a few programmers won't solve it, but that's ok. Given the massive harm software patents do, even a modest refusal to participate could yield significant harm reduction.
And the point of discussion is pretty clear: it's to help shape and propagate the kind of norm that Fowler is arguing for. Namely, most programmers knowing that participating in filing bullshit patents is an unprofessional activity.
If developers all united against filing software patents it could make a difference. I admit that I have cooperated in the filing of dumb patents before, but next time that happens I will refuse. Fire me if you have to.
I agree that we don't, and maybe never will have a reformed patent system due to the massive influence lobbyists have over our politicians. In fact, this is probably the core reason for almost every problem we have in public policy today.
I'd like to see more people talking about wanting reform of our political system and the influence money has on our politicians rather than have people wasting energy talking about the symptoms of the problem.
". It's not uncommon for programmers to talk about patents they've been involved in getting and how they know how absurd they are. I know it's easy to get on a high horse here, but I do think that any programmer who cooperates in getting a baseless patent should be ashamed of themselves."
Patents are a mark of prestige. Even if for something silly.
I'm disappointed at the reception of this comment. I have never respected software patents, but I am not ashamed that my name is on one. There is prestige in knowing that you are capable of doing something notable, even if it doesn't deserve the protections that patents currently provide. I don't care to do it again, but neither do I fault those who have participated in creating these patents.
If every respectable developer abstained from the patent system the problem would not go away, so let's not punish those who create but not benefit. The only end to this abusive situation is to remove the value of all patents on software.
Why is the patent a mark of notability of a developer's work? I hold respect for developers that share their knowledge in plain sight and plain language, not for developers that cooperate in creating some impossible-to-read legal document that I will never derive any useful knowledge from.
Or put more succinctly: if you want my respect, don't patent your idea, blog your idea.
I think the actual argument here is that most people would be fired if they refused to help their employer get a patent on something their employer wanted to patent.
Worse than that: possibly/probably sued. Most employment contracts require cooperation in legal matters.
Truth though is that that cooperation's pretty limited. Patents are largely drafted by attorneys, which is among the reasons that they're so piss poor at their stated use: transmitting knowledge on how to create the invention.
I think there is some divergence of perceptions here. I've worked with a lot of applicants for software patents, and they're not vaguely involved in applying to cover something well-known for which they might want to feel ashamed. Typically they're very clever people with a lot of expertise in a domain and they know what they've come up with is really new and awesome, and they're excited to patent it. I think the perception of software patents as a world of rot are based more on the perception bias of everyone reading and reiterating the daily cycle of polemics like this one that may or not cite any specific examples, at least beyond the same handful like the Amazon one-click, than on the actual state of software patents in general. And while the occasional bad patent is easy to see, it's less easy to see how the promise of patent protection helps steer the management decisions of companies to invest in engineers and computer scientists and research and development, rather than investing scarce resources in easier and more predictable ways to generate return on their investment, like hiring more sales people or buying back stock or spending more on lobbyists.
I have a patent on some work that I was proud to have done, because it contributed a substantial amount of the company's revenue. However, I didnt consider it valid, because there was a substantial amount of prior art. The company went ahead and patented it anyway. The others on team WERE excited.
I personally don't think the answer lies in abolishing patents because I don't think there is or likely ever will be sufficient impetus behind such an effort to make it happen. There is more hope someday of doing away with software patents but this will take many years given the recent Bilski ruling and Congressional inertia.
I don't pretend to have an answer to this. I suspect that, long term, there needs to be a severe curtailment of software patents, if not an outright abolition, in order to bring the system in line with what it used to be 20+ years ago. I have represented innovators for decades. In the past, I used to tell them: don't copy someone else's code unless you have a right to, watch out about misusing a former employer's IP, etc. and you will be fine. Today, I can't do that. Anyone can wind up infringing all sorts of nebulous patents at any time simply by doing completely independent and innovative work using nothing but one's own skills, knowledge, and talents. That is a very sorry place to be, and it has to change but how and when - that is what is so very frustrating. The author of this piece has the right sense of things but he, like me, winds up at the end basically howling at the moon in frustration over the utterly dispiriting short-term course of events.