Why we need to abolish software patents
techcrunch.com
techcrunch.com
So there are several parts to this equation. 1) Creating any bit of software involves thousands of "inventions," any one of which could be patentable. 2) Patents are granted for things which fail the obviousness test, where the chance of someone else independently "inventing" the same thing is essentially 100%. 3) The damages for violating even one patent tend to be astronomical and totally out of line with the contribution of that "invention" to the software in question. Out of 2 million lines of code, if one total BS patent covers 20 lines of that code, why are the damages likely to be basically equivalent to most of the revenue for that product? 4) The cost of defending against a patent lawsuit is enormous.
In other words: if you're a small software business, then there's pretty much a 100% chance someone else can sue you for patent infringement if they want to, losing the case will kill your company, and trying to defend yourself will severely drain your resources and could kill your company anyway.
There's no part of that that helps or encourages innovation.
Back in the day a student at my dorm in college decided tit would be a cool idea to make a webserver for our laundry machines so that we could tell if there was one free without going down to the basement. It attracted some interest, and was even Slashdotted a couple of times over the years. Between Slashdottings one and two a company applied for a patent on the idea of connecting laundry machines to web servers. Much later, after our dorms laundry server had been in operation for about a decade, they sent us a cease and desist letter. We informed them that they'd lose their patent if they took us to court and didn't suffer, but they are still charging people millions of dollars for the system their invalid patent gives them a monopoly on.
After I got my Master's I started work at a consultancy that did custom sensors. They had previously outsourced their engineering, but the company that had been given the engineering work had tried to patent the ideas of the consultancy out from under them. Luckily the consultancy had filed for patents first, but the company was granted one of the patents anyways.
I would also love a fourth fundamental test to be added - cost of development. The fundamental purpose of patents is to encourage innovation by allowing investments in developing new technology to be recouped. Devising and implementing a one click shopping system is not a substantial investment.
Unfortunately measuring the "cost" of development gets very complicated and subjective very quickly - accounting for money spent on failed attempts, human capital invested, opportunity cost, etc. Amazon could claim their whole development team was trying to think of innovations and one click shopping was the culmination of all of their efforts.
And in my experience, I've never met anyone at a startup company who didn't implement a technology due to a patent. But I have certainly worked with large companies, MS, IBM, HP, who have not implemented a technology due to patents.
It seems like a world w/o patents would simply strengthen MS and IBM. And probably have no net effect on startups, except in the unlikely event they do something innovative, but is somewhat easily replicated once seen.
I have been involved in patent litigation for many large companies, in a defensive role. And while some do blatantly violate patents, they generally go out of their way to work around the patent.
And there are some oft-requested features that don't exist in very popular products that don't exist solely due to patents.
And even patent trolls attack large companies more.
I just don't think that if you're a startup company you have much rational reason to care about patents. And if you do fear them, I suspect you'll likely fail due to that fact I doubt you're very rational.
I've heard of other similar incidents as well. They're far more likely if you're going into an existing market against well-funded (and shameless) incumbents than it is if you're in a nice market.
You're correct that the rational response is to not worry about it, simply because there's nothing you can do about it as a software startup. If someone wants to sue you, they will, no matter how far you go out of your way to avoid violating patents. So you just kind of hope you don't get unlucky and get sued before the company becomes big enough to file their own patents for defensive purposes.
Just because something happens infrequently doesn't mean it's not a real problem.
Again, I'm not saying it doesn't happen at all. But so do random bits flipping due to cosmic rays, but I don't think we should change how we write code due to it. Something are sufficiently rare that they're not worth spending much time on.
I can't really get into any specifics of the litigation because it's still ongoing.
How so? One company off the top of my head is TomTom that would benefit to Microsoft's detriment (VFat patent litigation; TomTom lost, MS won.)
IBM's hegemony is largely predicated on its mainframe-related patents. If anyone could write a clone they'd have their lunch eaten by FOSS same as Sun and the other big Unix vendors.
Yes, not having a patent on something actually created the behemoth which is Microsoft.
The alternative to patents is not "all information wants to be free", it's paranoid secrecy. If people are to invest in R&D, they need protection from copycats. I mean, check this out: http://www.nytimes.com/2010/08/07/business/07muffin.html
The other alternative is that people get along with openness just fine. Beside, people don't have an inherent right to a technological secret, at least in the normal cases.
The point of patents is, if you discover a method of doing something, you patent it, and if anyone wants to use your process, they pay you to license it. So we provide a mechanism - but not the guarantee, since no-one might be interested - for a return on an investment into R&D.
Do you really, honestly believe that a drug company would research a new drug, spend a decade shepherding it through clinical trials and FDA approval (we are talking an investment of hundreds of millions of dollars) and then a generic manufacturer sells it for a little over the price of the raw materials, having gotten all the hard work done for them for free?
Because even if they wanted to they couldn't; they'd be bankrupt.
That is not the point of the patent system, that is the means by which the actual goal is obtained. The goal of the patent system is make the information public so all of mankind can benefit from it and the knowledge doesn't die with the inventor. Buying off the inventor with a limited monopoly on the idea is merely a means to an end.
If you have a mechanism other than patents that makes it economically possible for private organizations to engage in capital-intensive R&D and make the information public, let's hear it.
I have made no such claim. In any case, producing in the first place will cost an order of magnitude more than copying. However, this seem to be of little hindrance in the observations that I been able to make over the years.
> "Some bakery experts were skeptical about Bimbo’s claims of top-secret processes, saying the mythology surrounding Thomas’ muffins was more about smart product branding than proprietary baking. The basic techniques for making an English muffin were widely known, they said: English muffin dough is very watery and when it is cooked at high heat the water evaporates quickly and leaves large air pockets."
Hell, see any utopian idealistic system. The excuse is the implementation always fails. How many times does implementation have to fail before we start to question whether it is simply possible to implement it correctly and whether it's worth the cost and frustration in the first place?
http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...
For my product, I have to forgo implementing the technique. It defines a feature not the product but it's a competitive advantage.
I think the VC's who are pushing this have an agenda.
If there was a shorter life span, or stronger enforcement over patent squatting, fewer people would be standing against it. But saying the VCs pushing this have an agenda, without citing a single source, and thinking that patents do anything now other than pay lawyers and slow innovation, is narrow-minded.
The only real concern to me is that smaller businesses don't have the sales and marketing team as the larger companies.
Right now, large businesses can flatten smaller businesses (See MS vFAT decision) if they even remotely become competitive through patent lawsuits. It is very rare to happen in the reverse.
This effectively undermines the entire purpose of the patent system: the patent office is charging applicants serious money for giving it the privilege of giving away their commercial secrets.
Giving away commercial secrets is why the patent system exists! The fact that software patents usually are too obscure to give away their secrets is part of what makes software patenting so dysfunctional in the first place.
"What is most alarming is that patent office automatically publishes applications online after the 18 months ... This effectively undermines the entire purpose of the patent system: the patent office is charging the applicant serious money for giving it the privilege of giving away their commercial secrets."
You know that going in (that you might not get a patent but that it will be published), it's a risk, but the whole idea is that great ideas will be released into the public domain with enough information to be implemented.
"They had the concept right, but they surely never conceived of Amazon.com patenting clicks in an online shopping cart and methods for having an online discussion"
This is an issue but in my opinion an issue with the patent office granting patents which through granting do not further innovation in the slightest (rather than it being software). A counter to this example would be perhaps, MapReduce [1].
This period would allow the innovator time to bring their product to market and begin profiting from their ideas. It would prevent patents being seen as a way to unfairly limit competition. Innovation would be encouraged. It might also reduce the desirability of patent-trading.
That's the best compromise I could come up with. I'm not interested in hearing from people who have a 100% ideological position. I'm interested in finding a solution, which implies a compromise from both sides. "Patents are evil" is not a solution.
Which is why the government grows and grows and society gets more and more disfunctional.
As long as PG doesn't separately state upvotes and downvotes, a better answer might be to reply to comments you don't love with "RTO" (restates the obvious) or "ANTD" (adds nothing to discussion).
This is a prime reason countries which are lax in enforcing copyright law as rising economically in the world.