The patent system isn’t broken — we are
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What an insulting and unfounded statement. The arguments against software patents are strong and coherent. Intelligent people can disagree in good faith about the issue, but labeling the anti-software patent position a "completely vacuous cop-out" is unjustified rhetoric. So far as I can see, he doesn't really provide anything other than "math is hard, companies spend money on it" to support a contrary position, and the philosophical point that physical inventions are based on mathematical physics is true but outside the scope of legal reasoning.
The whole piece irritates me, because it is really just repeating the standard arguments for the utility of the patent system in general which all serious participants in the debate already know. The implication is that opponents of software patents are just too ignorant to know the basic issues - which may be true enough of Random Internet Commentators, but is certainly not true of the many experts who are opposed to software patents.
1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed".
2. Software has certain properties that result in undesirable side-effects or ambiguities under the patent system at present, therefore we should adjust the treatment of patents on software to mitigate those effects and clarify those ambiguities. An example would be reducing term lengths to something more compatible with the pace of innovation.
I don't understand, how does that work? Let's get rid of the word "software" for a moment. Say I think that patents involving ducks shouldn't be allowed, for whatever reason. There's nothing inherent about ducks that means you can't make a patentable invention with a duck. But that by no means implies that my stance against duck patents means I'm against patents as a whole.
I would also point out the other possibility in what I said before: that statements like "duck patents shouldn't be allowed" are wrong. Maybe "wrong" sounds too absolute, so substitute "incomplete" if you like. "Some duck patents shouldn't be allowed" is a different proposition, and probably closer to what most people actually think, but Nilay is specifically addressing the absolutist rhetorical frenzy on you see on sites like Quacker News.
As for "some", you may be right, but I'm hard-pressed to think of any worthwhile software patents. Really, the fix for software patents is probably to reduce the term and vastly increase the requirements for novelty rather than eliminating them altogether, but on the other hand I really don't see much downside to simply disallowing it completely. Maybe I'm missing it, but patents don't really seem to be a requirement for software innovation.
Put another way: What's so special about "not-software" or "not-duck" that excludes it from the issue you have with software or duck patents?
That's pretty much my point. The original construction assumes that not only is there nothing special, but that the person arguing against software (duck) patents thinks that there is nothing special.
My real complaint is phrasing it by saying that a person who argues against software patents must be opposed to all patents, when it would be much more correct and much less insulting to say that this person should be opposed to all patents. One reduces the other person's argument to an absurd degree without allowing for any possibility that they might have a point, and the other just states why you (or whoever) think they're wrong.
If you are irritated by such standard arguments, which I respect, bear in mind that there are those of us who are frustrated by endless statements about how 'obvious' software patents are and how the edge cases demonstrate the whole system is broken and hence must be abandoned which is as coherent a position as proposing to do away with criminal law because of high profile miscarriages of justice. The law is an ass. Duh.
PG does make a good argument that abolition of software patent would be a step in the abolition of all patents (and the incentivation of companies to hide all profitable innovations). Yes, but the further institutionalization of software patents could just as easily result in a limited number of large companies owning the right to innovate in any fashion. Pick your poison.
One thing to consider here is that GPL's software provides a similar incentive system to the patent system. In exchange for releasing its algorithms, a company gets to distribute a huge store of existing software. Letting that arrangement replacement the patent system seems like a fine approach to me.
What we have no is the worst of all worlds: Invention secrecy and noncompetitive monopolies.
Also, software is a composition of far more patentable components than other things -- so patents are much more troublesome in that field. A software patent is somewhat like patenting a literary concept or a musical technique.
For starters, the anti-patent (or even anti-"Intellectual Property") position is not a default mindset, even today. The anti-patent viewpoint is not an "intellectual cheat", if the arguers back up the position with research, facts and examples, which, oddly, this article even gives.
Secondarily, the article even raises the basis for patents in the USA: to promote progress in science and engineering. If the patent system doesn't do that, then what is it's purpose? If the patent system just ends up giving incumbents in the market ways to limit competition,the it is indeed well and truly broken.
I take issue with article suggesting that all anti-patent views want that patent system abolished. That is absolutely not the case. The patent system should be brought into line with the rate at which industry is capable of innovating today. Furthermore, software patents need special treatment in their own right. They are simply not specific enough, and it is the generalisation that stifles innovation.
Again, I refer to Martin Fowler's excellent blog post on the subject of software patents http://martinfowler.com/bliki/SoftwarePatent.html
What's his solution to Intellectual Ventures, et al? One of the paragraphs I did read compared them to buying up land in the middle of town and setting up a strip mine. Which isn't a favorable comparison and, incidentally, we have zoning laws against that.
I'm not too sure why his title blames people because in the end he ends up blaming the current laws.
I thought he was going to blame people for exploiting poorly written laws, in which case I was going to offer to sell him a bridge somewhere.
EDIT: Of course, I don't agree.
I particularly disagree with his between-the-lines assertion that nobody other than Larry Page would've figured out the Page Rank formula by 2018. If that assertion isn't true then he fails to establish that patents have any value to society, and there is no reason (provided by the article) to think we shouldn't just get rid of them.
His answer was: "There's absolutely no question at all whatsoever."
Which I was certainly a bit suprised by.
Maybe the truest conclusion I can come to is that, well, because he's a patent lawyer and his livelihood is based on that being true, he has every incentive to believe it.
I think it's worth pointing out that Nilay Patel is a laywer. [EDIT: non-practicing lawyer, never a patent lawyer] It's clear to me when I read his writing on the subject as well as when I hear him talk about it on the podcast that he's so far from my own thinking on this as to be almost incomprehensible.
I've slowly been reading this: http://www.dklevine.com/general/intellectual/against.htm
But it seems to be light on data. Seems to me that theoretical arguments are well established and fairly strong on both sides at this point. Does anyone know of any empirical studies that have been done on the subject? Is that even possible? Any strong natural experiments?
Also, I believe his specialty was copyright, not patent, law.
Based on what I've heard him say on the podcast and read in this essay, it seems to me that his main objective is to show that this is a complex issue that can't be simplified down to "good" or "bad".
What I meant by that part of the comment is that from what I've heard and read by him, he seems so thoroughly entrenched in his perspective as a lawyer that the system in place is just how it is, that he has trouble even understanding systemic criticism of the system itself.
And my reading of the main objective you attribute to him isn't so much to introduce the complexity of the situations so much as to tell people to quit arguing about things that they're not experts on. Leave it to the lawyers in other words.
I think that's a fair sentiment to a degree. People definitely do seem to join one camp or another based on very simplistic versions of arguments, with very shallow understanding of the subjects at hand. But it doesn't seem useful to me to tell people to stop doing that. What seems more useful to me is try to educate people on the complexities of the issue so that you can elevate the people who are amenable to education. Ignore the others.
It's perfectly valid to tell stupid people that they're being stupid. But does it add anything meaningful to the conversation?
I just don't see Nilay ever addressing the actual, valid, fundamental criticisms of the patent system.
I think the occupation of lawyers and programmers are oddly similar. Both are paid for precise analysis and generation detailed interpretations. They just happen to speak different languages and their implementations run on vastly different platforms.
--Upton Sinclair
Laws are made (to some large degree), argued, and adjudicated by lawyers. The more laws there are, and the more complex legal system as a whole gets, the more we need lawyers and the more lawyers we need.
Seems to me like the definition of a vicious cycle. There are no controls. Are controls even possible?
Look at the EU (which is less patent friendly).
Which has more innovation in software? OK, the US. But that's mostly the result Silicon Valley. And there are a lot of non-US tech companies - Nokia (Finland), RIM (Canada - not sure where they stand), SAP (Germany).
Then there's the open source stuff. Linux (Finland), MySQL (Sweden), PHP (Greenland / Canada), Python (Holland), HTML (from CERN), Pascal, ... lots of innovative stuff gets made in the EU, but the profits tend to be less concentrated.
Well, in fairness: Fortran, C, UNIX, Apache, Perl, and PostGres are basically from US. Also, the GNU movement, but why would the EU need a free software revolution when they didn't have the stifling and secretive culture of the US?
Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.
You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(http://www.cs.cornell.edu/home.... The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)
The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).
Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.
And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999961
> both researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT.
http://en.wikipedia.org/wiki/Vim_%28text_editor%29#Release_h...
I do. I do with some regularity, and each time I come away more convinced that the majority of the press and discussion on the subject is complete garbage precisely because people don't bother to read them.
You give the PageRank example, missing though that there was work from IBM that was very similar.
There was a lot of similar work. There is always similar work. You'll find examples of it in the references section of the patent that nobody reads. Including:
'Jon M. Kleinberg, "Authoritative sources in a hyperlinked environment," 1998, Proc. Of the 9.sup.th Annual ACM-SIAM Symposium on Discrete Algorithms, pp. 668-677.'
I'd be surprised if Google didn't list Kleinberg's work as it was really well known in academic circles at the time. But if Google ever sued you with PageRank, and you tried to say, "Look -- prior art in Kleinberg!" They'd just say, "The USPTO already examined it and determined it isn't prior art. Sorry." You could almost certainly do a better job than the examiner in looking at the evidence, but the burden is proof is so high for you at this point that unless Larry Page wrote in his code, "This is a copy of Kleinberg's work that we slipped past the UPSTO" you're not likely to invalidate it.
The part of the argument you're missing is that patent were intended to "promote the progress of science and useful arts" and, as they're practiced today, are doing the exact opposite: delay the progress and useful arts.
In software, if I can't use an idea for 20 years, it's useless. I would rather take my chances, think about the problem and come up with my own solution. Unfortunately, because of onslaught of patents, that solution is more and more likely to have been patented by someone else.
As a practitioner of software arts and science, I not only don't have the time to sift through thousands of patents, but I also risk potentially fatal damages by independently coming up with ideas of my own.
That is the cost of patents and it's becoming unbearable.
The fact is that if the idea patented truly is the best way of doing something then a lot of smart and above average developers are likely to unknowingly bump into that idea out of necessity. And this seems to be a problem that is unique to software patents precisely because of the closeness of software to mathematics itself. Some algorithms are provably optimal for a particular problem which means that everybody smart enough that faces that problem will solve it the same way. If you're smart enough to come up with the best way of doing something on your own but can not use it because it was patented then you're forced into a wasteful outlay of creativity just trying to work around the patent. I don't see this as spurring innovation or at least not worthwhile innovation.
Phrases like these infuriate me: "lazy conventional wisdom that the patent system is broken beyond repair". No, it's not lazy. Smart people have devoted a lot of thought to this, and while some arrive at the conclusion that patents are a net benefit, that is far from the only conclusion that thinking people would be able to reach.
Sure easier said than done but no harder than convincing the country to do away with patents altogether.
In the end, the only people who finish the article are the people who already agree with you, now even more confident that they are right and the opposition are all idiots.
Apple's patent on "hand scaling velocity" simply gives a mathematical formula for the sentence: "scale at a speed proportional to how fast the fingers are moving."
There is nothing groundbreaking or advanced about the math here, or the idea behind it. Anyone implementing a multi-touch screen is likely to come to discover that a fixed scaling speed sometimes feels sluggish or awkwardly fast, and so that speed should adjust based on user input. And now, without realizing it, they've infringed on Apple's IP and are open to being sued.
For a lot of people, 'simple' and 'mathematical formula' is practically an oxymoron. I know, I know, it's a cliche to point it out, but it also illuminates the heart of the problem: The patent examiners are too overworked to pick up on the obviousness, and it doesn't look obvious to most people. It looks densely complex and inscrutable to most people. (The notion of whether we need to allow patents to be densely complex and inscrutable in the first place is another issue.)
Therefore, it's difficult to communicate just how bad the patent is to enough people to convince lawmakers to change the system.
I want to give TFA's author more credit, but I worry that he is just copy-pasting some math, in hopes that math will just look incomprehensible and hence novel. But that a patent has some equations in it doesn't make it novel. This math certainly isn't.
If you want an example of a patent that actually does have nontrivial math, then the MP3 patents for example qualify. (Whether you think even that should be patentable is of course still an open question - but at least the math in the MP3 patents isn't obvious.)
Nearly every big cause, right or wrong, has its supporters that may have just happened to be on that side, or thought about it seriously once and have since forgotten the details, or indeed have written many essays or books about the subject. I'm sure there are pieces more elegant and detailed than this that argue for abolishing the patent system; characterizing a position by the existence of uninformed supporters seems useless to me since pretty much all positions have those. The sentiment of educating the masses is nice, and I can agree with it, but on the other hand this is why we have skill specialization--I can give some money to someone who has spent lots and lots of time on the issues to continue their fight, I don't have to spend the same amount of time myself.
I know basic algebra looks brilliant to most ordinary people scared of math but I thought "Patents publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history, and it’ll all be free for the taking in several years" particularly amusing after the Apple screenshot. For startups and other companies outside the Valley (where there's a strong sense of sharing), how often do actual game-changing things get patented instead of made into a trade secret?
Are you sure it is not just a way of forcing people to waste effort making something different when there is a perfectly good solution ready to use? Is it not better to be building on things rather than around them? and having invention driven primarily by demand not by obstacles?
> Stop offering patent protection and there’s no more required disclosure -- all this stuff stays locked up as trade secrets
Are you sure it is not the likeliness of keeping the secret that dominates here? That is, if you think you can keep an invention secret for longer than a patent term, you will choose that instead of a patent -- since it will give you a longer monopoly. And if you think you cannot keep the secret, patent disclosure does not help anyone else that much, since the secret was going to leak anyway.
The supposed rational is one thing. Whether it actually works that way is another -- and there is no clear proof that it does work.
This paragraph from the article points out one of the larger issues I have with patents in high-tech, which is the length of the grant. Even ignoring the fact that simply reading patent claims is a VERY long way away from working code and related infrastructure, the lapse of the patent plus the knowledge from the patent would only be good for helping you to implement Google's algorithm as it existed in 1998(!). Forget about 2018, Google's algorithms (while still built on similar concepts) are known to be very different today or even 4 years ago than they were in 1998.
By granting such a long term to patents you are not just blocking competitors from the core claim, but also any innovations you make while the patent is active, assuming enough of the original invention remains that anything else that uses your non-filed tweaks would still be in violation of the original process.
Result? You could (assuming reading a patent magically allowed you to actually recreate the system) recreate 1998 Google in 2018. Approximate value of that 'knowledge gift to society' IN 2018? $0! You're 2 decades behind where you need to be if you're starting at the original core invention.
BTW, I don't mean for any of this to be a knock on Google, PageRank is simply the example the original article decided to use. Google remains one of the only big software-related corporations whose patent usage/enforcement hasn't yet been destructive to the industry as a whole.
I have long thought, as the author does, that a ban on "software patents" is extremely short-sighted, given that pretty much any physical object can be represented by equations or software. I really love his example of a beer bottle with a particular neck shape dictated by fluid mechanics equations.
His thoughts on patent trolls are also very welcome -- if we truly believe that intellectual property has value, then we have to allow it to be bought, sold and asserted. But, it does seem reasonable to tie damages to lost revenue or other actual business costs, which non-practicing entities would not have.
Hyperbole much? PageRank, really? The Internet, yes is one of the most important and disruptive inventions. One companies algorithm for sorting search results. A company that's only been around for a decade or so. Search is huge, Google is huge, but they and esp their pagerank agol ain't close to being one of the most important and disruptive inventions in the world.
Some parts are naive at a rare level, e.g.: "Those rules might actually solve the software patent dilemma for us if we just wait long enough: the gold rush to patent all these fundamental software technologies means that they’ll all be public domain prior art in a few years, and any obvious improvements won’t be patentable. The pendulum swings both ways."
And the long rant about software patent not being explicitly defined in the law and that fact being considered as an important advance in the discussion -- well did anybody did not know that? And even if it was the case, does that make the general discussion about the goodness or badness of patenting software irrelevant in any way?
It does not matter. In any case, to make it work, you need to change either the system or the population. I am quite sure that changing the population is not realistic at all.
Note that this leaves aside the concrete issue, in which I believe that the blame rests mostly on the system, which failed to understand the motivation of people. It does not matter, though (see above).
I hesitate to call this an "advanced technology". It's a kind of calculation we'd have done during what amounts to college years in the US.
I stopped reading there.
I bet if you put 10 decent programmers in a room, more than half come up with the same thing. That's true of SO many software patents.
I mean if they just allow only inventors themselves to license their patents and don't allow IV/Lodsys kind of companies to own patents they didn't invent.
Won't that solve half of the problems?
There's no reason that a scientist/inventor in a laboratory is going to be any good at running a business selling his invention, just like there's no reason a farmer is (or should be) any good at running a grocery store. It's much more efficient for the farmer to simply sell his produce wholesale to the distributors so he can concentrate on farming.
Don't take offense at this, but I think this idea (that the problem with the patent system is the separation of inventor and producer) is especially prevalent within the start-up community. Such entrepreneurs are used to thinking of the entire process as occurring in their figurative basement: identification of the problem, invention, patenting, production, and sales. When this is possible, it's awesome...but it's not usually possible. In many industries/disciplies, each one of these steps is done by a different person (who are very good at it because they are specialized) so it is crucial that they are able to capture their value-added at each step.
"where d(FI[n],FO[n]) is the squared Euclidean distance between the fingers"
The formula that is then given is under a square root, i.e. it is the Euclidean distance NOT the squared Euclidean distance.
Quite the contrary, some of the most controversial software patents are in fact so simple that you learn that in CS 101 or by yourself. Some other are just plain common sense.
But I agree it could help a tiny little bit with claims such as: "1) A mean of broadcasting current mood and menial activities using text messages. 2) 1 over the internet. 3) 1 over a portable device" (fictious, or maybe not?)
But still, my friend told me he could have made Twitter in two days.
Why is that?
Because Nilay doesn't understand why these patents are obvious.
Which is the whole fucking problem with the patent system Nilay:
People like you saying "Well, these patents look reasonable to me, so why are you people who do this for a living complaining?"