Martin Fowler on Software Patents
martinfowler.com
martinfowler.com
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.
This is a good video on this (about how the steam engine, the light bulb, Ford automobiles, and other breakthrough inventions came to life):
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.
(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.
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.
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.
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.
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 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.
Why is this level of complicity ok with you, but obtaining a patent for defensive purposes is not?
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...
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.
> 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.
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.
And as I said, just because something is sometimes or even often used for immoral purposes does not mean it is intrinsically immoral.
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.
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.
In summary, the only way to win is not to play.
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.
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.
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.
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.
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.
But alas, who will watch the watchmen?
In 2011, this should read:
With patents only wealthy people (or those with wealthy patrons) can afford to innovate, and there is little incentive for the rest of us to do so.
Patents are a mark of prestige. Even if for something silly.
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.
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.
Or put more succinctly: if you want my respect, don't patent your idea, blog your idea.
The specific examples I've seen are ridiculously broad and far from novel.
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.
Wonder if he's changed his mind since?