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Comment by dpcan | Hacker News Reader

How about a world with no patents at all and let's just see what happens.

Some economists argue that this would be a good idea. See:

http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...

Ack. Just the size and variety of industries whose operations are defined by patent law (medical research, for example - both drugs and equipment) makes this kind of proposition a lot more complicated than we can comprehend, I think.

Did you listen to the podcast or read his book? The author offers a lot of historical evidence and argument to back up his position.

Patents are broken in implementation, not as a concept.

Maybe a non-broken implementation is not possible.

It is if you can first solve the problem of getting people with domain knowledge to work as patent clerks, or if there is a "peer review" process or something.

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.

You are making the same economic mistake that a lot of anti-IP types do, which is that you assume that the cost of duplicating a thing has any relation to the cost of producing it in the first place. It does if you're talking about, I dunno, spoons.

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.

> 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.

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.

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

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.

Where exactly did I imply that? I was merely pointing out the motivations of the patent system. The system is not necessary for companies to be economically viable as they've been doing that with trade secrets long before patents were around. The patent system was meant to unlock those trade secrets for the benefit of the public, it was never about the inventor's best interests.

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.

Paranoid secrecy probably costs more to maintain than the benefit they receive from it. Their secret isn't much of a competitive advantage. Their brand is. Keep trademark, kill patents.

> "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."

I agree, but what's the chance that we'll ever get a non-broken implementation? If someone really tries to fix it, that would be great, but what are the odds it'll really be fixed instead of just being broken in different ways? From my perspective, ExpectedChanceOfBrokenness * ExpectedCostOfBrokenness > ExpectedCostOfKillingThem . . . so the probabilistically optimal course is to just kill patents for software (and business methods), even if it's not the absolutely optimal course.

Sometime, you don't fix what's not broken. Patents are probably a solution to a non-existent problem that everyone assume to exists.

I think it might be more accurate to say the legal system is broken, because that's what makes patents so dangerous. You can't afford to participate in the legal system unless you have lots of money, and patents are just one way incumbent companies can force their competitors into litigation.

This is true about many ideals. See socialist, laissez-faire capitalist, and communist supporters for arguing points.

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?

Somewhat related:

http://news.ycombinator.com/item?id=1583938

The world of SW is largely already a world w/o software patents. Very few companies are effected by SW patents. And even startup companies generally spend very little money on patents.

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.

Software patents affect small companies when they get sued by big companies or patent trolls. It happens all the time, and when it does there's basically no defense unless you have a huge patent portfolio and can countersue . . . which, if you're a small company or the other side is a patent troll, you can't do.

Maybe it happens, but I've never seen it happen in my career. I'm sure it does, but its pretty rare. And I've never seen any startup make a technology decision based on existing patents.

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.

May be because big companies have the deep pocket so they are the target of patent lawsuit? For small companies, software patent has the chilling effect in prevent them in doing certain things.

For what it's worth, it's happened to my company (a smaller company sued by a larger competitor), and the litigation has dragged on for almost three years now without going to trial.

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.

What was your company? I'd love to know this history. I've just never seen it happen that a large company files suit against a small startup. The closest thing is something like MS vs SalesForce, but SalesForce is hardly a small company.

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 don't think we should change how we write code, either: I think we should change the patent system so this stuff doesn't happen. I get tired of hearing the "it's just big companies suing other big companies" argument about why patents aren't a problem. Software patents generally don't stifle innovation because people don't do something because they're worried about patents: they stifle innovation by diverting huge financial and mental resources to patent lawsuits (and patent filing) that could otherwise go to product development or something else useful, and occasionally by crippling companies that aren't large enough to defend themselves. It's just kind of tax on the industry as a whole where the net effect is to siphon money and energy away from important things and towards lawyers. You'd have approximately the same effect if you replaced the patent system with roving bands of feral lawyers that went around randomly destroying property and burning down offices. You wouldn't say, "Hmm, I don't think I'll write software because some lawyer might burn my house down," but dealing with all that destruction would drain resources from other areas, and sometimes it would be too much for a company to overcome.

I can't really get into any specifics of the litigation because it's still ongoing.

http://www.eetimes.com/electronics-news/4068478/Mentor-EVE-s...

If you're going make a decision based on existing patents, the only possible decision is "don't go into the software business." Hard to say how often it happens.

Except that it rarely, if ever, happens. It's a waste of money to sue companies who aren't a threat or can't pay you. Look at who gets sued: Google, Apple, HTC, Microsoft. Look at who doesn't: Y Combinator and TechStars companies.

Just wait a few years. As you say, it's a waste of money to sue someone who's not a threat. Once one of those companies becomes a threat to someone with deep pockets (and some of them will), there's a fairly high likelihood that someone will sue them.

Or do what most companies do, buy them.

First rule of litigation - sue people who have money.

>It seems like a world w/o patents would simply strengthen MS and IBM.

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.

This is actually more accurate than you'd think. While everyone used IBM PCs as their personal computers for many years, IBM was harmed massively when their PC BIOS was reverse engineered and then copied by Compaq (and subsequently many other computer manufacturers.) In fact, arguably, because that happened, we had a cheap IBM PC boom where software would work on multiple hardware platforms made by multiple different companies. This led to Microsoft's rise. Arguably, if they only sold on IBM-sold PCs, they would have made a lot of money, but nothing as meteoric as they did.

Yes, not having a patent on something actually created the behemoth which is Microsoft.

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