Patents on Software: A Nobel Laureate’s View
nytimes.com
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Chemical engineering, to use that example, designs elaborate and complex dynamic systems by chaining together abstract chemical algorithms. Each one of those little algorithms is subject to both patent and copyright. Like with software most of the commonly used algorithms and clever hacks were either never patented or the patents have long expired. It is only on the bleeding edge that some chemical algorithms are under patent; as with computer algorithms there are an unbounded number of potential algorithms but some are more efficient than others. Specific implementations are still covered by copyright and are widely licensed (as libraries).
Most of the nominal specialness attributed to software as a domain for intellectual property does not really exist. Yet the rarely questioned assertion that computer software is special in some way has created a dearth of comparative studies that would likely be valuable from both a theoretical standpoint as well as a practical policy standpoint. Either these other areas, like chemical processes, are equally broken at a fundamental level and the scope should be extended beyond software, or there are differences in implementation across otherwise equivalent domains and we should borrowing from the better implementation. It seems like an oversight that no one is attempting to do either.
There have been a large number of good papers published all coming to this one conclusion - speed to market in current software markets is the ultimate strategic advantage and source of reward. Most other things can be copied quickly enough, but the landscape is evolving fast enough that innovators can constantly one-up the competition, reaping greatest rewards.
By contrast, in capital-intensive, slower industries, these "guard rails" make a lot of sense - if it takes me years to make a breakthrough on the drug, but means of copying it a re super straightforward because I am required to publish the recipe for all to see, it makes sense to restrict the use of the recipe.
I don't see anyone publishing Google search algorithms for all to see. In fact there is an entire industry that focuses on guessing what it is - SEO.
To me personally, it boils down to this - if we make it super easy for competitors to ride your coat-tails by forcing you to disclose your secrete sauce, then it's fair to try and give you some protection. If we leave you to compete without that interference, than we should not extend the extra protection... (this is just strictly a personal view, grounded more in my ethical views than anything else).
In the future advances in science and computer modeling should make drug development much more rapid than it is today. This could vastly lower the cost to bring drugs to market and put drug development easily within the grasp of a large non-profit organization.
Imagine that instead granting a private company the exclusive right to sell a drug, that instead everyone invested in its development and upon its discovery its formula was shared freely. For most drugs, the synthesis is not a major component of the cost. This would lead to rapid deployment of the drug at very low cost to those who need it.
If there was no copyright law, you can be sure there would still be drugs! And perhaps health insurance companies would be interested in drug development. Fewer sick people and cheaper medicine should lead to greater profits.
Define "ground-breaking".
This is the myth of the patent system: the lone inventor doing dazzling unprecedented work that they can only recoup by being granted a patent. Those people don't exist. You may find one or two, but not enough to justify the overbearing patent system.
The idea of a patent is heavily predicated on one novel advance in an otherwise freely implementable design. But in software that is (or threatens to become) a myth rather than a reality.
I expect that any trivial software application has many (many) orders of magnitude more patent-vulnerable elements than the most complex commercially produced chemicals.
Software is much more free to include complexity because of the low cost of each element - there's no need to create a physical plant that implements the software.
This makes progress in software much more vulnerable to impedance by patents, because patents cause a greater increase in the relative cost of each element and because there are more elements involved.
And I think if we only allowed patents on "ground breaking" inventions, there would be many fewer patents and much less basis for anti-patent opinions.
It's kind of neat actually; synthetic chemistry in many ways shares its algorithmic and design-oriented nature with software engineering. Rational drug design will only add to the similarities and overlaps going forward.
I think you're possibly understating the problem. The idea that there are "more elements" implies that there are something like ten or a hundred times as many in software as in other industries, but it's worse than that.
The problem is that software uses categories where other industries use instances. Everything is designed as an abstraction on purpose. The result is that patent claim limitations that would be actual limitations in other industries are in software de facto claims of the entire class.
For example, if a claim limitation requires a network connection -- even a specific kind of network connection (e.g. stream sockets or unix domain sockets) -- and you're writing a piece of software intended for use with files on disk, you might think you're safe because you can't infringe that claim. But you're not, because the system calls that work on file descriptors also work on socket descriptors, and socket descriptors can be associated with any supported kind of connection. Your users can run your program and give it the name of a "file" which is really a socket and wham, your software is infringing. The abstractions we use to make things scalable and efficient also cause a combinatorial explosion in the scope of possible infringement.
In the extreme case, general purpose programming tools can in concept infringe any software patent. A user merely needs to type the claim limitations into the source file and the interpreter is happy to infringe. Naturally that case is probably too extreme to find much sympathy in the courts (or they'll come up with something like "substantial non-infringing use"), but the problem is that there is no line. Can we really draw a reasoned distinction between a bash interpreter that allows you to infringe a software patent by typing a twelve line shell script, and a web page that allows you to infringe a software patent with twelve mouse clicks?
It reminds me of this (http://boingboing.net/2012/08/23/civilwar.html) re: DRM. "Make me a general purpose computer that runs all programs except for one program that freaks me out." That's not how computers work. It's not how software works, and it's not how software is designed. You make software to have all the features users want by abstracting everything and making it modular so that anyone can plug in alternatives as they come about. Software patents come in and say "make the software have all possible combinations of features in the world, except this one combination which is covered by these claims." It just doesn't work that way.
Patents no longer serve their original purpose and the current system should be dismantled (though I know it won't be, because the big money is on the side of keeping the broken system).
I'm okay with the idea of something new being created to give protection to intellectual property (on a much shorter timescale, say 2-5 years), but the current patent system is incredibly broken.
Why? Because you want to give them incentives to invest in costly research that wouldn't pay off without a limited monopoly.
But what if research paid off even without such protection? And, more importantly, what if research is not even research at all, let alone costly?
I know little of other industries, but practically none of the recent software patents are a result of costly research, and therefore deserve no protection.
For me the question isn't, 'how do we protect the intellectual property of the people who do research', because the term intellectual property is a legal one that varies massively in time and geography. I would probably be more inclined to ask the question 'how do we make sure that the people who do research get paid really well and are really well resourced', and work from there.
Just rapid development and testing. Biotech, chemistry, hardware development are orders of magnitude slower.
But development and testing of anything is getting faster every year. Hardware development and testing is now hugely accelerated with FPGA design flow, for example, which feels a lot like software developmnent with crappy tools, to me. All fields' patent abilities will probably live or die eventually by whether software patents live or die. Maybe that's why Maskin ignores the rest.
No matter how you look at it, patents are nothing but a relic of Monarchical times. The system for attribution has changed, but the effect remains the same: companies are in rent-seeking mode when they ask for patents, not in the business of innovation of disruption.
And in fact, no patents are legitimate. Worse than that, most people's concept of "legitimate" is not legitimate. What most people seem to have banned from their thinking is anything close to resembling a ethical argument. Just because something is legal, does not make it ethical. That reverses the true order: what inherently flouts the ethical underpinning of law must not be made legal. E.g., one should never legalize rape, to make rape legal does not change the fact that it is unethical to make rape legal.
But typically, whenever you try to offer anyone an ethical argument concerning patents, it goes straight over their head. They've been conditioned to think that whether patents are legal or not is an entirely pragmatic decision having nothing to do with ethics but only with economics. And so the mayhem continues...
The stated goal of patents is not a moral imperative to protect inventors, but rather an economic hack that is meant to incentivize invention for the benefit of society, only benefitting inventors as a side effect. The fact that it is achieving the opposite of its goal means that an ethical discussion is worth having, but mostly irrelevant (see also: the Drug War).
If you tried to abolish intellectual property the main opposition wouldn't be parties whose main motivation would be a genuine concern that you'd be de-incentivizing invention for the benefit of society, but rather parties who have a vested interest in the current system for their own benefit.
E.g. trademark law supports the existence of the advertising industry, by creating protectable brands through restrictions on speech. Most web companies wouldn't exist in their current form if there wasn't a tremendous incentive for companies to build up those protectable brands through advertising.
As it turns out, one can make an argument that copyrights/trademarks can be reformed, but patents cannot. The difference is that no one can accidentally "trip" over a sensibly defined copyright or trademark, whereas patents are intrinsically a legal landmine -- people can and often do accidentally infringe.
Second, you can accidentally infringe on a trademark, and can be prevented from using a trademark even if you came up with the term independently.
Third, there is no reason why you couldn't add an "independent invention" defense to patent.
Fourth, you have no basis for your claim that people "often" accidentally infringe patents.
- Second, I am not referring to trademarks as presently defined.
- Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.
- Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
I don't think I follow what you're trying to say. My point is that whether something can be accidentally infringed or not is a weird criterion to use to separate ethical and unethical restraints on free expression. We create civil liability for lots of things that happen on accident. I think the ethical discussion, if there is one, centers on whether these restraints on free expression or valid in the first place.
> Second, I am not referring to trademarks as presently defined.
You said that trademarks/copyright could be distinguished from patent based on accidental infringement. You could define trademarks in a way where accidental infringement didn't create liability, but you could define patents that way too. Neither are defined that way presently.
> Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.
I'm not sure what 3rd grade reading level principles of ethical justice you're talking about. We require defendants to prove certain affirmative defenses all the time, generally in cases where something is unlikely to have occurred without wrongdoing. E.g. if you kill somebody in self defense, you're obligated to at least present evidence that it was in self-defense. And of course we're talking about civil litigation here, not criminal litigation. "Innocence" is the wrong terminology.
> Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
I'm not the one who said that people "often" accidentally infringe patents, you were.
The dichotomy between civil and criminal is irrelevant. You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical. An ethical person leaves others alone unless these others violate your basic rights. And if they do, then the burden is on you to prove they did, not on them to prove they didn't.
So the burden of proof principle applies here, as it should everywhere else in the law. Of primary concern here is the burden of proof that advocates of patents have on proving that the alleged patent violator deserves to be interfered with, blocked, fined, etc. They have not met this burden. Ergo they do not have an ethical right to enforce patents.
It is very relevant. What is "ethical" in the context of civil and criminal cases is very different. For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence.
> You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical.
"Affirmative defense" does not mean that defendants are picked at random and forced to prove they didn't do anything wrong. It means that defendants must make a credible evidentiary showing in defense after the plaintiff has already presented evidence suggesting wrongdoing.
Whether you make something an affirmative defense or an element of the case in the civil context isn't about ethics, it's about statistics. So long as granted patents aren't trivial (and that's a separate issue), it's unlikely that someone would infringe on it accidentally. Given that, there is nothing unfair about making the defendant present evidence about why that unlikely accident did in fact happen. The plaintiff still bears the burden of proving that, however.
This is not evidence for your contrary stance, it's merely repeating the status quo: "For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence."
You're playing an absolutely ridiculous game of "hide the ball" here. In your head you clearly have some specific assumptions about what is "ethical" but you're not forthcoming with those assumptions. Instead, you claim I'm being dishonest for not divining the hidden rules you've laid out in your own head.
I'm going to guess you're some sort of libertarian or possibly anarchist, playing the usual game of implicitly arguing from a non-mainstream value framework without acknowledging that to be the case, then getting upset at people for not acknowledging your unstated unconventional beliefs.
I liked this title because it is restricted to software. A title like "Abolish patents, full stop" is, to be blunt, sheer idiocy and all too common.
I think there are some key differences between software "R&D" and chemical and biological R&D, and I can't see how any rational argument for reform could ignore those differences, but this "Noble Laureate" fails to mention any of them. Does he know something on the subject of patents that we don't?
Why? Apparently a Nobel laureate in Economics disagrees with you, so maybe we should take the idea seriously.
To see more of Maskin's arguments on software patents, you can read a paper of his on the subject at citation #6 on his wikipedia page:
I just skimmed that paper and I see references to semiconductors and software. The word "pharmaceutical" only appears in the title of a one of the references. He never discusses pharmaceuticals.
Maybe the IT industry has enough cash to make us all forget about other industries that use the patent system such as the pharmaceutical industry. Maybe we can stay focussed on software as a raison d'etre for everything. If patents hurt software, then they must be abolished. Never mind how this might impact other industries.
The only thing I "disagree" with is that the focus is solely on software. Where were these "abolish patents" arguments from Nobel Laureates in Economic years ago, before the smartphone era? Why weren't they arguing against patents that make it more difficult for smaller players to develop drug treatments and make the treatments that are developed by large players more expensive for everyone?^1 Or maybe they were and I just didn't notice.
I'm just not convinced that someone who focuses almost entirely on IT and particularly software truly understands _all_ the dynamics of the patent system. It makes me skeptical. Software is a recent entry into the patent game. The absurd behavior of a few IT companies and patent trolls emerging from IT (the term patent troll itself was coined by an Intel lawyer) is making us question the very notion of patents, for _any_ industry. Am I the only who find this a bit peculiar?
Let's take a step back and look at the big picture. Before these IT clowns got so seriously involved with patents (the increases in the number of patents they've filed for and been granted in a relatively short span of years is, at least to me, quite shocking), how many scholars were proposing bold ideas about "abolishing [all] patents"? There have been serious problems with patents for many years. But maybe they have just never been exploited with such insulting flagrancy until now, thanks to the greater participation of the software industry and one fashionable hardware company in particular.
Maybe the real pressing problem is not patent but IT executives and their child-like ideas about how to conduct business.
1. Years ago, there were people arguing for patent _reform_ (not abolishing an entire system) and warning of the frequency with which bogus software patents were being issued. And even just arguing for reforms, they seemed a bit crazy at the time. Needless to say they did not have "Nobel" attached to their names. My, how things have changed. I wonder what they think now?
In a "just" world, the ethical thing to do would be to consider the needs of all stakeholders when trying to advance your own. However, we don't live in an idealized just world. Pharmaceutical companies and other patent advocates aren't considering the needs of software companies when they lobby. Assuming that the natural human instinct is to look for a middle-ground compromise (a logical fallacy that seems to be hard wired into our brains), compromising our own arguments by acknowledging theirs, when they will not reciprocate, will not get us where we want to be.
"compromise [is] a logical fallacy"
If it's hard wired then maybe that's for a reason. And the reason is likely because it keeps you or your progeny alive longer.
Economics can often be inhuman. It's all theory. Contrast that with evolution and "hard wiring". Absence of logic aside, if everyone took your attitude seriously, little would get done and I'm sure economic activity would suffer. Welcome to the world of negotiation. It's how things get done.
This is type of comment represents exactly the kind of childish thinking to which I was refering.
When you are incapable of negotiation, patents and IP in general indeed become a royal PITA.
I'm not sure that lobbying from the pharma industry would have done much good for software companies before the State Street decision. As I said, software companies are newcomers to patents. Other industries have been using patents for far longer.
Even copyright protection for software is a relatively new thing. I'm sure the world's largest patent troll when he was a CTO at a major software company was at times amazed that software could be protected by copyright. It is a gift that spawned an industry and was used to build one of the world's greatest monopolies. What would have happened without that ability to sue for copyright infringement?
"compromise [is] a logical fallacy"
That is a misunderstanding or misrepresentation of my intended meaning. Some reading for you:
https://en.wikipedia.org/wiki/Argument_to_moderation
http://www.don-lindsay-archive.org/skeptic/arguments.html#co...
https://en.wikipedia.org/wiki/Overton_window
https://en.wikipedia.org/wiki/Ambit_claim
If it's hard wired then maybe that's for a reason. And the reason is likely because it keeps you or your progeny alive longer.
Modern civilization hasn't existed long enough for evolution to catch up. Our hundreds of thousands of years trekking across and out of Africa didn't prepare our feeble minds for the complexities of modern politics.
What would have happened without that ability to sue for copyright infringement?
Most likely? World peace, universal equality, and unlocking the universe's infinite money cheat. Or at least, one less patent troll dragging on innovation.
If I understand you correctly this time, you're saying we would have gotten a better deal if Microsoft had not been able sue competitors. Even the Gates Foundation, with all its billions, can't manage to achieve world peace or universal equality.
I read Maskin's paper from 1999. His basic premise was that software didn't need patents to reach a high level of success as an industry. And when the rampant software patenting started, he says it did not boost the industry. But he seems to think that this example of one industry sums up the entire role of the patent system, for any industry. Still not sure I buy that. If he has done his homework on other industries, e.g. pharmaceuticals, he is not showing it in that paper. Maybe I need to read more of his papers.
That's what I'm saying. Politicians will apply the fallacy of the false compromise, so in order to get what you want, you have to lobby the politicians in opposition to your opponents.
Suppose you could represent the politician's opinion as a number. Your goal is to get the politician to believe in 1.0. Your opponents are arguing for 2.0, so if you argue for 1.0, the politician will go for 1.5. You have to argue for 0.0 in order to get a reasonable compromise at 1.0.
If I understand you correctly this time, you're saying we would have gotten a better deal if Microsoft had not been able sue competitors. Even the Gates Foundation, with all its billions, can't manage to achieve world peace or universal equality.
I was making two points: 1. if Microsoft hadn't made billions, Nathan Myhrvold wouldn't have been able to fund Intellectual Ventures and start a lawsuit campaign via shell companies; 2. (less seriously) if software wasn't covered by copyright, there would still have been a Free Software ecosystem, because there is a sizable subset of the population whose primary driving instinct is the creation and distribution of useful human knowledge.
I'm not sure. It seems to be what he's saying from the letter to the editor, but I don't know if he's said so publicly elsewhere except about software patents.
I was looking at a face recognition patent that was filed by the US by a Japanese company in 1998 that was finally issued in 2006. Eight years is a very long time in the fast moving software industry -- even if you get lucky and your patent granted in two years, it's quite possible that your invention is obsolete by the time you get your patent.
Given that software is so fast paced, most organizations that expect to be "practicing entities" find the patent application to be a distraction from the task of getting a competitive product in the marketplace. This is a very different situation from other fields where you really can get a patent for a mechanical or electronic thing and then have the patent as a tool for negotiation w/ manufacturers.