Patents Threaten To Silence A Little Girl, Literally
techdirt.com
techdirt.com
By the way, the reason TTS AAC apps are so expensive (Speak for Yourself is $299, Proloquo2go is $189) is not just the developers. If you're using someone's TTS library (no good open-source ones exist), they can contractually require you not to sell your app under a specific amount because they want X% of your sales. And then of course the license fees to various patent-holders.
Patent reform isn't just about one-clicks and black-border-around-touchscreen tablets. It's about preventing the stifling of innovation. I built a truly unique feature in KType - guess which of the 2-10 multi-touch taps is intentional (i.e. based on the user's preferences, guess which one is the 'index' finger). As far as I know, no app or system can do this. Without this feature, users with speech and motor disabilities have a very difficult time using a touch-screen. I would love for this feature to be a part of all touch-screens, in the Accessibility configuration. That's why I openly described the algorithm the day I came up with it instead of patenting it. But I could be sued and shutdown because one of the many features of KType was broadly patented by someone two decades ago.
I dread being in an industry where trying to help others for barely any money can get you shuttered. I can make 10x more money making an ad/affiliate-network but I love seeing the look on my users' and their caregivers' faces when they are able to use my app to finally communicate after years of needing others' help. I hope this case ends well for Speak for Yourself but honestly, I'm not too optimistic.
AFAIK this is what patents were supposed to do, instead of people locking away their inventions they would give incentives for people to share their knowledge so everyone would get the results but the owner would be able to benefit from publishing. Now it's "property", and people start talking mortality and trying to take moral high ground, starving artists and equating it with stealing, or some perverse economics rationalization focusing on profit as objective. Frankly I don't think I ever heard anyone saying that he read a patent to understand/learn something - although some papers were probably published after they got patents, I know two of those, but I would argue that those patents were blatantly obvious anyway, since I started working on the same problem and arrived at the same solution independently - found those papers after solving the problem/colleague pointed me to them - without even being an expert in the field - they did develop their ideas fully but I'm sure if I kept working on it, or someone else did, they would solve it, and both of those have immediate applications/have been developed for a product so the R&D would have to be done for product development, having it patented provided was not required for the investment.
True, but the compensation for sharing their knowledge is an absolute, legally enforceable lockdown for so many years. Everyone benefits only when the patent expires. In the meantime the patent holder controls the market and reaps the benefits, hence it becomes a legal, time-limited monopoly. The only possible countermeasure is to have critical patents yourself and play a game of dissuasion, or throw yourself into Mutually Assured Litigation.
Indeed in that case the only solution would have been to patent the 'guess which of the 2-10 multi-touch taps is intentional' technique in hopes that you could countersue or trade it, hence locking down the area further and preventing progress even more. And that's not even taking moral issues into account.
I think the best way to deal with patents is to make a 4 year patent free period, in which you can file for new patents, but you can't sue anyone for infringement, and any work within those 4 years can't be affected by existing patents after the period expires. AFAIK this was already done by the US government in the aviation because they didn't want to pay Wright brothers, and the aviation industry grew, but I read this a long time I don't remember the details. But essentially you can measure the R&D investments in the industry and provide a empirical argument on how much R&D investment was lost (if any, I think the effect would be opposite, but it's a speculation) and compare with how much the industry has grown, then if you come to conclusion that patents are necessary measure the average R&D investment cost, profit, return periods, and compile that data in to a optimal time period which would allow the average successful/profitable patent to recoup the investment and earn a premium on standard rate of return.
No, everyone benefits when the patent is published, because you can start studying how the invention worked. Of course this doesn't really apply to method patents that describe abstract solutions, which is why they are so terrible.
> The only possible countermeasure is to have critical patents yourself and play a game of dissuasion, or throw yourself into Mutually Assured Litigation.
The spirit of the patent system is not that you can/must form patent pools, but that you are forced to invent a different, and hopefully better, product. If nobody can come up with an improvement within a limited period of time, then this could be taken as proof that your solution is the best one, and thus everyone should have access to it. The reward to the inventor is simply part of the mechanism that causes things to be improved, it is not the entirety of it.
Fair point.
> The spirit of the patent system is not that you can/must form patent pools, but that you are forced to invent a different, and hopefully better, product. If nobody can come up with an improvement within a limited period of time, then this could be taken as proof that your solution is the best one
This is the theory, but practice differs wildly. More often than not you're not coming up with another, unrelated and possibly marginally better solution, but progressing by varying increments (standing on the solders of giants). Part of your improved solution could very well be found to be subject to the initial patent, either upfront when application is rejected, or later on when legally challenged. So a very real scenario is that you are simply forced to reinvent a wheel as being square when you should be focusing on improving a round one. As such maybe nobody could come up with an improvement precisely because nobody researched such a solution in the first place in fear of outrageous patent licensing costs on the parent method, or fear of litigation afterwards, both of which would simply make your research investment void.
That's good - parents only last 20 years, so that means the parent is almost expired.
I tried loading the live demo on a desktop browser and got many alerts about missing Cordova APIs. Perhaps you should put your PhoneGap/Cordova calls behind checks, so that the app works as a regular website as well (for the demo, I mean)?
When its clear that patents aren't doing their job, and especially in the case where demonstrable public harm is resulting from them, the government should have the right to perform a simple predetermined "due process" like procedure to simply terminate them. Concerned citizens should be able to bring cases like this to the attention of a special office of the USPTO to make this happen.
There's but one way to "fix" patents, and that's to get rid of them and never try again. We've seen over the last decades (or, indeed, since their inception) that they do nothing but stifle and harm progress, both actively and passively. Today, in a globalized, digitally connected world, progress is speeding up and will continue to do so, probably by magnitudes. The patent system is utterly unsustainable in such a world, and we need to abolish it before it causes even more irreversible harm to humanity.
Lets just start with the "Be a dick, lose your patent" act. Baby steps.
Also, this issue is endemic to the whole disabilities industry. If someone has a specific deformity and needs something shaped to that deformity, then that is a patent right there, covering everyone with a similar deformity who needs that functionality. And for some reason this logic doesn't fail the obviousness test.
"that they do nothing but stifle and harm progress"
Maybe, on balance, they do more harm than good. But they don't only do harm. For one thing, they're embedded into the way a lot of things are done (some of them important) and you can't know in advance how changing it will affect stuff. They also do what they're supposed to do (incentivize innovation) at least some of the time.
Name one, just one, software patent that has verifiably done more good than harm. Because I don't know of any.
Who will fund expensive medical research for new drugs if the company next door can just clone your work with minimal expenses?
You have to address the free rider problem here.
I have no reference atm, but I'm sure I read that medical research gets most of its funding from public bodies anyway. Its a lot anyway and I'm not convinvced that it wouldn't be better to be done all publically.
Time for their business model to die
Saarland Pirates would disagree with you.
In this instance however, it is think of this very specific child. There is no hypothetical child here who might be harmed. There is a real, actual child who will lose her ability to communicate if this app is pulled off and remotely deleted from her iPad.
When Apple yanks apps from the store, they are not remotely deleted from customer's iDevices or PC's. There are a small handful of cases where remote deletion was used, and IIRC, it was all various forms of malware.
Giving an example in which a certain system is bad for individuals is not automatically a logical fallacy. In the article it is clearly not used as a thought-terminating cliché, but merely a way to (truthfully) show the downsides of patent legislation – and if nothing else convince the patent holders that pressing charges against an app that is so essential for many is not a good idea. They also explain in detail what they think is the problem with the current system.
People don't argue that patents are good for consumers because they aren't. People argue about if they're good for inventors and technical progress; if inventors will only innovate and share the results with the monetary benefit provided by a patent.
And the point of technical progress is to benefit the public (i.e. consumers) in the long run. So it all comes down to that.
The issue is in the implementation and outcomes. As you say, do inventors only innovate+share when provided with the monetary benefit of a patent? It would probably depend on the field, but I suspect innovation would still occur even with shorter patent protections for software design.
People still innovate even when they know they're gonna get copied. Maybe not as many people, but it doesn't make as big a difference as the pro-patent lobby would have you believe.
If not, why not?
While a very heart stomping tale, it doesn't change the facts. The article even says the lawsuit and patent look solid. Even the mother says she doesn't care about the legality of the app. People are so quick to jump on the sympathy wagon and rail against the big bad corporation for profiting from all their work. But how many of those people would hold the same view if THEY were the ones who's hard work (protected with a patent) was being used without permission? It really scares me when I see people thinking they are entitled to something for free just because they need it and it costs too much. I think $12 for a movie ticket is way too much but that doesn't make it any less illegal to download a bootleg of it. Do I do it? sure I do. But if I got caught I'd take my lumps like every other "criminal". Sure that isn't going to get the sympathy that this girl will get, but at the end of the day it is the same argument (without the emotional appeal). The ends do not always justify the means. A man who robs a bank to feed his kids is just as much the criminal as the man who robs a bank to buy crack.
Huh? Removing an app from the store doesn't remove it from devices that have it installed. There's no reason to disable connectivity. If you sync the device with iTunes (instead of just backing up to iCloud) then you can keep the app forever.
Has it been used for legally questionable apps before? A bit of Google-fu didn't turn anything up immediately.
Do you think this is the way property rights and software ought to work together?
Do you think that this is not true of other engineering disciplines? For instance, can an auto maker build a new car without infringing tons of patents? What about robot makers? Airplane manufacturers? Do you believe that nothing that e.g. SpaceX (or your favorite innovation shop) is working on is worthy of patent protection?
> Do you think this is the way property rights and software ought to work together?
This consequence is clearly horrible. However, let's say there was an innovative physical device (with no software) at play instead. Then we'd say that's exactly how property rights work. We'd presumably be happy that in a few years the rest of society would have access to the device without paying the monopoly rates. The point is the monopoly is an incentive that helps an inventor take an idea from concept to useful product. If the idea had value by itself, we could use my idea for a cancer cure and be free of it tomorrow. (Unfortunately, I am missing the useful -- patentable --parts of the cure.)
What specifically is so different about software that would make it unique among engineering pursuits as the only one unworthy of patent protection?
I do think the degree to which software builds on itself is different than in other engineering disciplines, but I'm afraid I don't have evidence to back it up. The closest I can get in the time I've got this morning: consider the amount of (compiled) code Dell ships on a $500 PC and compare that to a $500 mechanical device like a bicycle. I can imagine doing the research to figure out whether the bicycle infringes any patents. With the PC, I can't imagine how it would be possible. You'd have to understand how all of every program shipped on the PC works; I doubt that there is anyone alive who has even read more than half of the code in any single modern operating system. You'd need a team of programmer/lawyers and the source code from every vendor who ships code on the PC.
From there, I'd say that a system where an inventor can't assess whether their invention is infringing without an effort comparable to the amount of work needed to create the invention is a bad system.
The first counterargument to your position is that it's not based on any guiding principle, but rather the degree of overlap among innovations. That makes it difficult to specify, and hardly seems like reason enough alone to ban software patents. There may be a case for banning software patents, but it seems like the argument would need to be less subjective.
The second counterargument to your position is that you're comparing apples and oranges, on the basis of retail cost. The Dell PC is near the cutting edge of its field, while pretty much everything in the bicycle would have been invented before patents were invented. A better comparison would be the Dell's software vs. a mechanical system developed by Kiva for making their warehouse robots more effective (or a propulsion engineer at SpaceX making some cool rocket stuff). Mechanical engineers pushing the envelope are in the same position as software engineers.
Besides, isn't some of this transitive? If I can make something (unpatentable) in software, but I can build a (patentable) device to perform the same function, what difference makes the software embodiment less worthy? Surely with different incentives the patent system would be flooded with patents on single-use mechanical devices to take the place of the software patent flood we have today.
I can agree with you that the implementation of the current system is a mess, but I'm not sure that translates directly to the case for invalidating software patents. I'm not sure whether software should be patentable or not, I just have yet to hear a compelling case against the principle of software patents vs. other types of patents.
Intellectual property is a form of government granted temporary monopoly, supposedly in the name of encouraging progress and the common good.
It is clear that "Intellectual Property" is counterproductive regarding the goals it had. It is time to abolish it.
Saying the "to promote the common good" is not the phraseology, and that matters from a legal standpoint.
I think more elaboration is needed as to exactly how this patent aims to fulfill its purpose. Then we may have more insight to decipher whether the Patent Clause appropriately defends the holder of the patent in this case.
That's hardly an extreme - it's what happens in many advanced nations with universal healthcare. Taxes are collected, and part of them go to paying for medical treatment for everyone, rich or poor.
"property and rights are principles the United States is built upon."
That doesn't say anything about how long the temporary monopolies granted for patents and copyrights should last, or whether everything in every context should be patentable (e.g. software and UI design).
Intellectual property rights are important, insofar as they "promote the Progress of Science and useful Arts". When this goal is no longer being effectively promoted by the current implementation of the patent/copyright systems, then it's time to consider re-engineering them.
But, apparently, others who don't share our experience, have not. What would be the best way to explain the situation? Writing comments on hacker news is probably not going to influence any lawmakers....
1. Society defines what is property and who has rights. This can change at any time. That is, there is no absolute notion of "property".
Not too far back humans were property. Some would say the abolition of that notion of property is a principle the United States was built upon.
2. Software is different from other patentable ideas. It completely fails the non-obviousness test. That is, people can easily independently develop or use ideas as part of their own creation since at core it is just mathematics applied to a problem domain. This is similar to the underlying reason why (pure) business processes are not in general patentable outside the U.S.
3. There is no corollary to other social systems, at least not the for derivative health metaphor that you made. You cannot give up something (wealth) that you never "owned" in the first place. Further, anyone can fall sick or be hurt at any time for any reason, regardless of wealth or circumstance. So, there is always a social cost come what may. Whereas, you have to create an idea and choose to follow it.
Innovation is an "option" and therefore easily blocked. This was an objective reason for having a patent system in the first place (whether it has succeeded in that is a different question all together).
You cannot even argue software patents are the most efficient enablers of innovation since some of the most innovative and useful software known to exist either easily predates software patents or were explicitly made available for free (many even while software patentability was available) and never encumbered at any point.
TL;DR. It is only a question property and rights if a society deems it. It does not have to be this way. As easily evidenced by lack of software or business process patents for most of the rest of the world...