An argument that's rarely made: Almost everyone whose work would be protected by software patents, is fervently opposed to them. Except patent lawyers and multinationals. That should tell you everything on whether they're a good idea.
Intellectual property is a thing that exists. Somehow Apple’s Ax processors are several times faster than the best Qualcomm can do. That’s intellectual property. Given that, I’m not sure it makes sense to divide up patentability based on whether it’s software or something else.
(At the same time, I’d probably say that nothing bad would happen if we simply banned advertising. Since my paycheck never depended on ads I have to admit I don’t really get why it’s necessary, beyond the abstract intellectual arguments. People’s world views are limited by their direct experience.)
There is hardly any field where you can improve the state of the art, without stepping on dozens of patents. Of course you can ignore those patents if you don't care about making any money off your work. But if that's the case, you don't need patents in the first place.
That is precisely my point.
Every product Apple sells incorporates various standards, including open source. The key is to use open source to reduce the barrier to participating in a market and then add value on top of open source to make a profit.
[1]: https://www.nist.gov/standardsgov/what-we-do/federal-policy-...
Microsoft made a lot of money selling Windows and their Office suite precisely by locking people into their ecosystem.
You say you like markets, yet you don't like others offering goods at a lower price (free software), but you do like government-enforced monopolies on ideas (patents, and even copyright). If we're diving things into 'market' and 'not market', shouldn't you categorize them in the exact opposite way as you did?
> Now, you get Android for “free” but only by turning your customers into the product.
You also get linux for free, or you can pay for Windows and still be made into the product. The only way I can see someone arriving at your position is to selectively pay attention only to cases where free software with anti-consumer features crowded out straight-forward proprietary software, and ignore cases where free software turned out good (compilers, linux, firefox, text editors, libre office, lineageOS, VLC, etc. etc. etc.)
Only if you can't create something valuable. But if it's not valuable, then it's not your property, it's worthless.
>Now, you get Android for “free” but only by turning your customers into the product.
Paid services still turn the customers into the product, e.g. Windows. Also Android is not open source.
>get to control the standard by fiat
Commercial dealers have a long track record of anticompetitive practices. It's the whole reason why antimonopoly law was written.
At the core of the argument, software engineering is applied math. Math is not patentable. Software patents are workarounds around the fact that math is not patentable. Yes, the work is valuable, but it should not be patentable.
Here are USPTO's guidelines https://www.uspto.gov/web/offices/pac/mpep/s2106.html
The purpose of a patent is to grant a monopoly for an invention that would not be obvious to someone skilled in the art.
These business methods should not enjoy patent protection that prevents someone from independently discovering and implementing same solution. There is a finite number of ways to efficiently implement wayfinding for a self-driving car.
Similarly, I can convert any hardware into a software model of it, which makes it into pure imagination.
At least some multinationals would benefit from software patents going away, since they are often used defensively.
Software might have some kind of protection, even how you design your DB is protected, but you can't forbid someone to make a similar software that does the same thing.
Software is engineering, not art. It should be protected like technology, not art.
There is strong moral argument for copyright, a sentiment most people at least in Western culture agree with: you shouldn't be able to take work of others without doing any yourself.
Let's not forget that for quite a few years, asymmetric cryptography was patented and you couldn't implement any kind of cryptosystem that used it. God knows what the state of cryptography would be today if we didn't have our equivalent of a "dark age" thanks to fears over patent litigation.
Also the nature of patents incentivizes you to claim patents even if you fundamentally disagree with the patent system, if you want to continue doing business. Otherwise a troll or competitor could try to shut you down
Now it's protecting the turf of the large corporate, from any whiff of competition by fair means and foul.
I'd be 100% for ending software patents. We already ban patents on mathematics.
Because people will horde their inventions to themselves and reduce the rate of progression of civilisation?
I bet someone else who isn't silly like that will rediscover likely within twenty years of the hypothetical hoarder.
Also, you can hoard it under the current regime anyway:
> WD-40's formula is a trade secret, and has not changed over the years, according to historian Iris Engstrand. To avoid disclosing its composition, the product was not patented in 1953, and the window of opportunity for patenting it has long since closed.
I didn't think of that. I don't think the situation is quite so cut and dry though.
Imagine how many patents like one click [1][2] we can avoid if there simply was no patent.
I am not convinced that patents have an overwhelmingly positive effect on society at this point in history. We have to consider that communication (both one to one and one to many) is a lot cheaper today than even two hundred years ago.
I think reasonable people should push for an end to all patents.
[1] https://en.wikipedia.org/wiki/1-Click [2] https://patents.google.com/patent/US5960411A/en
In this context, _nobody_ is going to stand up and call BS on the game. Certainly not Larry.
Senior engineers in BigTechCo get paid bonuses for patent filings so they're unlikely to speak up for fear of those bonuses.
I feel a bit nervous posting this to be honest, but hey..
In this landscape where it's almost impossible to build products without stepping on patents, the only way to defend a large company against being bled to the bone by patent lawsuits is to have a deep warchest of patents to file countersuits, basically just MAD for software.
It's not so much about understanding the space, it's about the mental availability of examples used to estimate the general state of the world.
People who watch TV news regularly overestimate the crime rate. Why? Because TV media focuses on the dramatic and attention-grabbing -- "if it bleeds, it leads". No effort is made to present a statistically valid sample of reality. Nobody is publishing "little old lady walks home safely for two thousandth time".
Similarly for patents. There are millions. Which ones get press? It's not a perfectly random sample, what we see is the absurd and outrageous examples, ones which deserve criticism and anger. But if you base your estimate of the entire system on examples chosen specifically because they will arouse anger, then you have an inaccurate estimate. Because "patent for neat idea lives quiet life until expiry" or "patent amicably licensed on reasonable terms" or "patent application invalidated by prior art during examination" don't make it to the front page of HN.
Please provide some kind of basis to this claim.
Well...I think all the basis is likely to be anecdotal unless someone performs a survey.
One data point: I've been doing this stuff for decades and I have never had reason to _read_ a patent filing. That has to indicate something, no? If they were so "inventive" wouldn't we need to read them to find out about new inventions. The only patents I've read were a) ones where I was the named inventor (even then I didn't understand them) and b) where I was employed as an expert by lawyers fighting trolls in litigation.
Furthermore, our company lawyer would probably choke me if he caught me reading patents, as then we'd be subject to much higher damages if we were ever claimed to be infringing something.
Knowing of a software patent exposes you to willful infringement, and you'd need a lawyer to understand what the bloody hell most software patents are even claiming to patent.
What is that supposed to tell me?
But, this is why historically patents were not a big deal: all tech companies (this is before software patents were even allowed, so we're talking hardware patents) all entered into cross licensing agreements and everyone used each other's inventions mostly without royalties paid.
I know you're implying "no, it's a bad idea". But doesn't the involvement of the individuals who do patent law as their sole job qualify them to know more about it then "almost everyone"?
Do we want to encourage the development of patent law, or of software?
Please provide evidence.
As it happens one of them left his law firm and founded a software company.
> I've worked with several
To be fair, that's not a compelling answer. Given the outrageous cases that are publicized, I can understand how there is an incentive to NOT know (or act as if) in an exploitative manner. According to a razor, it's less likely that the competence is a standard or relevant.
I have noted elsewhere that the outrageous examples are publicised because they are outrageous, but that doesn't make them a valid statistical sample of all software patents.
Patent lawyers need to understand the material well enough to draft the claims and perform clearance searches. If they can't do that then they are sailing towards failing their fiduciary duty; a lawyer anxious to hold onto their bar membership would refer you to another one with a speciality in the field.
If I go to a criminal lawyer and ask for tax help, they will refer me to a tax lawyer. If I go to a chemical engineering patent lawyer to talk about a compression algorithm, they will refer me to a patent lawyer who specialises in software and computing.
> who do patent law as their sole job
Then they have all the incentives to keep patents alive.
Public goods are chronically undersupplied in a normal market situation. Providing them imposes a cost on the provider, but because the good is non-excludable you're relying on the goodness of consumers to pay for it. Some will, some won't, but the net amount recovered will be less than it would be otherwise.
So what do we do about the undersupply of public goods? There are a variety of options. Taking knowledge as a particular example, one option is the patent system, which grants a temporary legal monopoly on the claims in the patent. It creates an artificial excludability that allows the provider of the knowledge to recover more of the cost of providing it. Overall that should raise the production of knowledge.
But, you say, that reduces competition. And sometimes it will. But many ideas can be substituted and so the competitors will patent different things. In fact the monopoly of the competitor gives them an incentive to find new ideas that the competitor hasn't found yet, an incentive which was weaker in the original situation.
The alternative is provision through a central supplier, typically: government. But it turns out that the costs of developing knowledge still remain, so how are they paid for? Taxes, essentially. Generally speaking the costs work out to be about the same, but become differently distributed. Instead of knowledge being created by active, incentivised parties who can then get a return from those who value the knowledge most, the incidence of cost falls on everyone.
Someone who doesn't value that knowledge gets ripped off, and someone who values it very highly gets subsidised.
That said: pure research almost always needs to be publicly subsidised because, by very sensible policy, the laws of nature can't be patented. And representatives passing public budgets can give consideration to which public goods ought to be subsidised, beyond the cold light of economics, as a principle of fairness or morality or furthering humankind.
But most knowledge is not pure research. So either we pay for it with taxes, or we pay for it with patents, or we pay for it by getting less common knowledge. Nothing comes for free. Not even ideas.
That greed is a motivation for obtaining a patent doesn't make them bad, any more than my decision to care about my wages makes me bad. Greed will exist either way, the question is how best to direct it towards maximising the total good.
I have heard this argument a lot of times, but I don't see how it applies to software patents in particular. At one of the previous jobs, I was doing some research, and there were lots of useful inputs: conference/journal papers, technical reports, thesises, and so on. The only exception are software patents -- I have never learned anything from them.
Let's take for exa/mple first google hit for "software patent", which for me is https://patents.google.com/patent/US6353926B1/en "Software update notification". In my opinion, it is completely useless.
- It has nothing particularly innovative. It describes a specific Windows update mechanism in needless details -- while it is a solid design, most engineers, given the same problem, would come up with similar design. I know I did, and I did not know anything about OSD, CDF or windows update subsystem at all.
- It does not present information clearly. The text is hard to read and needlessly complicated. There are better sources of information about this topic -- I am sure there is a MSDN article and a dozen of blog posts which describe this much better.
- It did not even motivate the inventor! I am almost sure that whatever motivation Microsoft had for promoting Open Software Description standard, it was not to get this patent.
So what good is this patent? As far as I can see, there is no public benefit at all. The only value is for Microsoft, so they can threaten others and stifle competition.
We already have strong intellectual property protections, and yet you still claim we have an undersupply of those kinds of public goods?
Is there a lack of software being produced?
Is there a lack of books? Of blogs?
If the right software algorithms or the right books or blog posts aren't being written, isn't it because we've broken culture to discourage sharing? Every good idea that generates the next great algorithm or the next amazing book or blog post is sparked mostly by other people's work. Standing on the shoulders of giants and all that.
What we've done is to discourage free exchange of ideas and writings, without actually preventing it (piracy is still commonplace, just not in polite company).
Western society has fetishized the ownership of practical ideas (inventions), as well as words and pictures and sounds, despite no evidence that it actually helps promote progress.
IP creation is high-risk even with current IP protections. Reward (for labor) is highly variable. Most work ends up not being worth much. So the reluctance of most people to toil to invent something is due to not having the financial security (financial independence or a secure job) to do that. Most people who aren't famous can't live on a book advance, and there's no model for advances on not-yet-patented inventions. IP protection does not remove those barriers.
> In fact the monopoly of the competitor gives them an incentive to find new ideas that the competitor hasn't found yet, an incentive which was weaker in the original situation.
In the software patent world, when that happens, the competitor typically isn't inventing new groundbreaking ideas as a result of being forced to; they're hacking around the patent in very obvious ways, sometimes resorting to sub-par alternatives. Why? to avoid paying a ridiculous patent license fee which the patent holder is using as a moat rather than the original intention of recouping whatever sales they'd lose to their competitor.
Companies like Apple and Amazon, if they don't get to wage cold wars against their competitors for things like 1-click or whichever corner or symbol you use to get your phone to do something, would soldier on and continue selling mobile devices. Not only would it not make any difference to anyone, but it would increase interoperability since companies would be more likely to reuse familiar design patterns.
Here's a pure algorithm-design case study on the horrible effects of patents even by non-trolls: h.265 patents discouraged and slowed down mass adoption and prompted a bunch of major companies to waste a lot of time developing a marginally superior but much less efficient alternative in AV1. And for what? What poor starving coder wouldn't have developed h.265 except for the piles of gold bars they received for their effort? Wait... they did get piles of gold bars, didn't they?
Normal market situation here refers to a competitive market without government intervention. Copyright, trademarks and patents are all government interventions. These greatly improve the attractiveness of creating software and publishing books.
> Every good idea that generates the next great algorithm or the next amazing book or blog post is sparked mostly by other people's work. Standing on the shoulders of giants and all that.
This is what I mean by knowledge being a public good. When it is shared, it becomes more valuable to society as a whole. But if sharing it is a burden with no prospect of profiting, less sharing will occur. Everyone wants to have a fire service, for example, but unless there is some mechanism to ensure everyone chips in, fire services will be undersupplied.
> What we've done is to discourage free exchange of ideas and writings
Patents are public. Trademarks are public. Copyrighted works are submitted to national libraries.
It's harder and more expensive to get unpatented work. I can download any patent from the USPTO free. If I want to read a paper published by the ACM or IEEE then there is a good chance I'll have to pay for it.
> In the software patent world, when that happens, the competitor typically isn't inventing new groundbreaking ideas as a result of being forced to; they're hacking around the patent in very obvious ways, sometimes resorting to sub-par alternatives.
And sometimes they will come up with better alternatives. But without having the patent being public, they wouldn't have anywhere to begin, because the details are completely secret. Patent coverage can last for 20 years, but the concepts and possibilities it can create start from the instant the application is first published. Whereas a company sitting on the idea for 20 years doesn't spark anything. For anyone. At all.
Secondly: patents are inherently a form of publishing your ip. The "giving away" part is enforced by laws, but the whole concept of patents is to make knowledge publicly available. Typically, "giving away" is only restricted to commercial uses - anyone who duplicates the patented invention for personal use is fine. You may argue that that is foolish for an advanced economy, but that is what most of them do.
Frankly, I'm amazed that American companies haven't banded together to call for the end of software patents to erase that enormous and expensive trade deficit.
Historically, some of the very earliest documented cases of industrial espionage were performed against China by european powers. - The US is not innocent in that regard either, but probably much better at hiding their activity. We needed Edward Snowden to substantiate what people in the industry here in Germany had been suspecting for decades [0]: I've heard of numerous cases where german companies are developing new tech, and shortly before or after release an american company with close ties to the government releases an equal product.
[0] https://www.spiegel.de/international/germany/german-intellig...