Patently Absurd - Copyright Law Can Meet the Needs of Software Developers
cato.org
cato.org
Now their investors are getting some money back by licensing the patents to the banks, so they'll (hopefully) be willing to invest in innovative startups that have to work with incumbents again.
Next time a small innovative company comes along, the banks are (hopefully) going to think twice before just deciding that they can easily re-implement their ideas.
This doesn't seem to me like a particularly good example of the patent system gone wrong. To me, this looks like exactly what the patent system is supposed to be: protection for those with innovative concepts, so that they can have the opportunity to commercialize their inventions without incumbents simply cloning their hard work.
The US banking system feels pretty backwards in terms of its reliance on checks where Europe has adopted electronic transfers. If the banks actually wanted to innovate here, they'd introduce a real electronic transfer system. The idea of scanning checks and sending around images (and presumably one day constructing virtual check images electronically and sending those) strikes me as remarkably backwards, but nonetheless a very clever solution to a real-world problem.
If you build a better mousetrap and try to sell it, but I decide to build my own copy of the mousetrap for my own use, wouldn't that be non-infringing?
It's not clear to me whether in this case the check scanning systems were in fact independently invented; there's certainly a hint in the article that meetings took place and the banks only implemented the idea once it has been disclosed to them ('willful infringement' results in triple damages, which could well explain the magnitude of the licensing amounts)
I'm not necessarily sticking up for this patent, and I tend to believe the patent system is completely fouled up for software companies, but we can do better at analyzing the issues than just automatically saying "that's brain dead obvious".
1. Boggle rule. In the game Boggle when two players come up with the same word neither get credit. If from a given time of filing a patent someone else files a similar patent both are rejected.
2. Virgin engineer rule. Take a group of people competent in the field of the proposed patent but without any knowledge of the patent. Give them the problem the patent purports to address. If in a single day their solutions substantially match the proposed patent, reject the patent.
The first is reasonably sound. A potentially very interesting idea is to allow anything filed within 3 months of filing to be considered "prior art", although I'm not sure this would make a huge difference in practice.
The second would be very labor intensive if done in practice. Doing this as a thought-experiment is actually how non-obviousness is determined by patent examiners. If an engineer of "ordinary skill in the art" would think the approach obvious given the prior art, then the patent is deemed obvious. I don't know if it's ever been tried to locate 'virgin engineers' to demonstrate that a patent is obvious.
So the second idea is how the system works, although the examiner is supposed to be the group of engineers.
Recognising the problem is often the innovation.
As Henry Ford said, "If I'd asked customers, they'd have said that they wanted a faster horse."
It can be an innovation, but it can be very hard for the PTO to tell just how much of an innovation it is. What happens a lot, I believe, is that the emergence of a new technology creates new possibilities, but the actual application of the technology to those possibilities raises certain problems that have to be solved. The existence of those problems is not obvious in advance of the new technology, but once people have it in front of them and start to play around with it, it starts to become more and more likely that someone will think of those problems. The evidence for this is the not infrequent occurrence of simultaneous or near-simultaneous invention.
So while recognizing the problem might be an innovation, it might be an almost inevitable innovation. Furthermore, much of the credit might arguably belong to the enabling technology that made a solution possible, and to the industry that developed and commercialized that technology.
To make an extreme simile, one could say the Internet is like the technology to allow us to colonize the moon, and so many of these software patents are like people booking trips to the moon, arriving, and then staking a land claim. It wasn't very much their own intrepid exploration that made it possible for them to stake that claim; there might have been a little of that, but mostly they're dependent on the massive effort, by an entire industry, that made it possible for them to get there in the first place. So the policy question is, have they really contributed so much that we should reward them with that land claim?
Or, it might not.
> Furthermore, much of the credit might arguably belong to the enabling technology that made a solution possible, and to the industry that developed and commercialized that technology.
So? They're free to recognize the capabilities and invent.
However, that's a red herring because you also don't want them to be able to get patents for recognizing the possibilites.
I get that you don't like "recognize the problem" inventions. Howver, can you argue against them on the basis of "it was inevitable" or "someone else should have gotten the credit"?
Which reminds me - can you name three inventions that weren't inevitable and how you know? I'm trying to figure out if your argument against "recognize the problem" patents applies more generally.
Was there a flood of overlapping patents for similar technology at the same time?
I brought up my entry into the industry in 1994 because '94 wasn't a slow year for tech at all. It was about a year before the bubble started blowing up, but there were lots and lots of small companies doing software.
So you'd agree that if things were right in the world, we should all be using the original version of WebCrawler today, because it pioneered the idea of web search, which these other horrible idea-stealing companies like Google took and re-implemented?
Do you really think that's the way business should work, that whoever first notices that a problem needs solving (and bothers to submit a patent application) should have a long-term monopoly on solutions to that problem?
Personally, I'd prefer that the means of solution, if non-trivial enough, was protected, rather than the entire set of all possible solutions to a problem.
That's exactly what patents are.
If the problem is defined as "send images of checks instead of checks", then DataTreasury is trying to assert ownership over the entire problem rather than their particular solution - they're claiming that any solution that deals in images of checks instead of physical checks infringes, regardless of how it's implemented.
If you define the problem as "don't send physical checks", then sure, the particular solution, "send images of checks instead" is what they're asserting ownership over.
But in that case, the non-triviality of the solution is seriously questionable. There's no engineering insight at all required to come up with that, and it's one of the first things any group of people would think of when presented with the problem. The entire difficulty is all in how to actually implement such a system (and pre-1994, those implementation details made it unlikely that such a system would work).
IMO, in a situation like this, what the patent should cover is the new stuff that DataTreasury actually invented (and I agree that there is some non-trivial content there), not the entire high level problem that their invention allowed them to solve.
So many patents these days (in software, at least) are just as you describe: cases where someone realized that a problem existed, came up with a quite straightforward solution, and patented it.
We need Congress or the courts to tell the PTO that "obvious" means "the solution is straightforward given the problem". And then, of course, we need to get the PTO to hire software engineers who actually know how to build things, so they know what that means.
If there are huge economic impact that are for the worse as a result of patenting non-obvious solution, than we should scrap the system altogether.
Patents do not exist to give you a an easy monopoly on any random idea (or at least they shouldn't). Patents exist to give companies an incentive to invest into costly research and then be able to publish the ideas, while getting some time to recoup the cost of the investment.
The litmus test is, would this idea have seen the light of the day without a lot of upfront cost? If so, it is not in the interest of society as a whole to grant a legal monopoly here.
Just my $0.02.
The idea that software development is the sole province of the lone inventor is both wrong and irrelevant. The reason that our constitution facilitated patents was nothing to do with how many people invented something but rather with encouraging disclosure of the result.
If we stipulate that software patents are frequently violated...so what? Without further analysis of why or whether specific improvements to the system would be helpful this is a dangling factoid - no more.
Finally, the idea that copyright provides any kind of protection for software is so ludicrous the writer's naivety is laid bare. Copyright protects only the expression of an idea. In the case of a work of art such as a novel or painting the expression is critical to the work and copyright is a valuable protection. But if a programmer sits with original source code before him and rewrites it in another language thereby benefiting enormously from the original work but changing the expression completely they may indeed be programmers writing "their own code" but it certainly isn't "from scratch", and whilst he is right that "they can be confident they aren't infringing others" it is blindingly obvious that they have copied. Copyright is worthless if the expression doesn't matter and all that matters is functional equivalence. And guess what, users don't give a rat's ass how a program is expressed so long as it works.
I recommend reading about clean room reverse engineering. That's what you have to do to copy software without infringing its copyright. It's doable, but in most cases it'll be more, not less, work than writing your own software from scratch.
But the parent has an valid point nonetheless. If you do a clean room reimplementation of a program, then you are off the hook as far as copyright goes. Yet the user may not be able to tell the difference. In short, the user cares about the functionality of the program, not its expression (the source code).
I think that's a valid argument that copyright protection is not entirely sufficient for software, and that patents could have a useful role to play.
Personally, I think the problem with software patents today is that the obviousness bar is far too low -- we're patenting problems, not solutions. See my comments elsewhere on this page.
I think the main reason you don't see more clean-room reimplementations is simply, as you say, that level of compatibility is rarely necessary -- indeed, it's often considered undesirable, even by the users.
I am extremely familiar with clean room reverse engineering. You are absolutely mistaken if you believe that 'That's what you have to do to copy software without infringing its copyright.' Reverse engineering actually has a rather different history. Given a device, say a chip, take the inputs and outputs of said device which defines the machine's behavior. Now design and build a machine which reproduces such a mapping. This practice was frequently associated with 'clean room' protocols. The key point is that the team had absolutely NO access to the source code. And because such a clean room team would never hire anyone who had previously had such access they could be confidently said to have reverse engineered the behavior from the APIs alone. This is a VERY different situation.
I also agree with the implication that patenting "specific techniques" is beneficial. The history of the industrial revolution is littered with such innovation. It's only correlation, but the places with patent laws also had the most vigorous innovation. At that time, the newspapers were filled with new innovations and inventions, and people seemed to be falling over each other to invent something new, and to patent it. They thought patents promoted innovation - and the drafters of the US constitution thought so too.
Personally, I would love to see new specific techniques being invented, rather than the next facebook, or the next webapp of something already done offline. The latter can be really useful and a great benefit to the world, but it doesn't stir my soul. I want new technology and entirely new ways of doing things! To make this more concrete:
- I would say that while Card Case's geofencing payments (http://news.ycombinator.com/item?id=3189438) is a new and cool idea, it should not be patentable.
- I think that Ken Thompson's specific mechanism for rapid regexp matching should be patentable (http://www.cs.princeton.edu/courses/archive/spr09/cos333/bea...) The idea of using regexp for search was new and cool (actually groundbreaking), but it's only the specific mechanism that should be patentable. Which is what Ken did.
Scalia was the one deciding vote and refused to join either side's opinion on the actual subject of software patents. His decision is tentative and equivocal on the subject of software and business method patents.
This article appears in the National Review, the thinkiest of the Republican news magazines. Perhaps it can help bring a little of the craziness among Republican judges back to reason on a subject central to our industry's future on these shores.
As it stands, I promise you there are many many conservative technologists who agree with your take on the patent system, but have wildly different takes on e.g. public sector unions and school choice.
(I'm not one of them; I'm a dyed-in-the-wool liberal. Ironically, I'm actually less sold on how horrible patent litigation is than most of my conservative friends.)
Speaking of judges --- and I thought your horse-race analysis was interesting, even if it made me queasy --- to the extent that there is really a such thing as a "Republican" or "Democrat" judge (as opposed to a liberal-leaning or conservative-leaning judge, or an "orthodox" or "reform-minded" judge) --- there are influential conservative judges who do not have knee-jerk pro-patent thoughts. What does Posner think about the patent situation?