US patent chief to software patent critics: "Give it a rest already"
arstechnica.com
arstechnica.com
Metric X is high, therefore disputed policy Y is boosting metric X.
If more people understood the inanity of this line of argument, the world would be a much better place.
The head of the USPTO isn't even willing to have an intellectually honest debate on the subject. It's pretty clear that change is not going to come from within.
I would say that it is even worse than that, because the metric itself is disputed.
If the police were to start a policy of giving out free GPS handguns to anyone, they might justify it by saying that they have caught more murderers since the policy began. The metric itself is flawed, as it assumes that catching a murderer it good in and of itself, and is in fact better than preventing a murder in the first place.
Here, he is arguing that lawsuits are good in and of themselves, without looking into whether those lawsuits have a positive or negative effect. He merely states without justification that the lawsuits have the effect of ``protecting innovation.''
At this rate, I'd rather just pay an "Innovation Tax" and be done with it.
Although the reasoning doesn't exactly follow, it does still say something important: that the patent system isn't totally breaking innovation. In other words, he's saying that we have something to lose, and he's right.
You can make a strong argument that we won't lose it, and I'd agree with you. But it's not exactly proven. Actually, I don't think it's a simple win or lose situation, I think that patents (or the lack thereof) change the nature of things invented, and it's hard to quantify whether it's better or worse.
You can make an equally strong argument that not only will we not lose it, but we'll be far, far better off with major restrictions on what he's peddling.
But the commenter to whom I replied called the patent chief "intellectually dishonest", and I think that's a strong statement and not adequately supported.
He's either avoiding any/all arguments in that area or ignorant of them.
This is like saying it wouldn't be so bad to be blind because blind people are able to live fulfilling and experience-rich lives. Yes, that is true, blind people do live rich and fulfilling lives, but this says nothing at all about the richness of the lives they could be living if they were not blind.
We have fewer than five large companies dominating the smart phone space. Let's ignore for a moment the fallacy that because smart phone innovation is occurring that therefore all innovation is a-okay. There are no small players in this space. This is like American car companies before Tesla and the other new electric companies got started. We know from experience that the domination of an industry by a few large players does not lead to innovation in the long term. It leads to tit-for-tat competition with little novel exploration of the space of possible products. These companies become conservative and self-concerned.
I think if you do any research into the current patent system, you will find it self-evident that the situation is untenable. Amazon holds a patent on "one-click ordering". They own a 20-year patent on the notion of only needing to click one button to make a purchase. Apple was just granted a patent on "searching across multiple databases simultaneously". The absurdity of the situation is apparent.
We are already in a period where large companies can use their patents to crush startups. It does not matter if the patent dispute is spurious and the startup clearly within their rights. Large companies with in-house legal staff can drown a startup by requiring them to fork out enormous quantities of money for legal representation in their self-defense. With a suite of patents, a company like Apple can bring suit after suit until finally the small company either loses one (these things are not decided by engineers or experts in patent law, they are decided by juries, a curse and a blessing), or runs out of money. This is analogous to the libel/slander situation in Britain, in which the cost of defending against a libel suite is enough to ruin a journalistic enterprise.
Read about what happened to Vlingo, as the situation I just described has already occurred: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...
I was already convinced that the patent system needs reform.
There's a horde of small players in the space. They've been dropping like flies, but there's a steady stream of new entrants both on the handset and software sides. Most of these new companies will fail as well. But it's not because of patents, it's because there are big economies of scale and the network effects are even bigger.
This argument shouldn't even be at issue. Of course we're seeing very rapid innovation. The question is whether that's because of or in spite of the current patent regime, which is very hard to answer. People like us see the harm that bad patents can do and decide one way.
Other people look at (1) the fact that there is rapid innovation in the market and (2) the patent system was designed to foster innovation as evidence to the contrary. You're not going to win these people over by claiming that patents are "killing" innovation. All they have to do is look in their pockets to see that you're wrong.
> How many companies are in the current YC round again?
not to distract from the threads theme of misinterpretation, but no, not quite. it's more like saying "being blind doesn't completely ruin your life".
Rarely is it the case that anything is truly "total". And if the patent system is squashing 25% of innovation in the software industry, or even 10%, that is a big problem.
Also, it is possible to squash certain kinds of innovators - like startups without tens or hundreds of millions of dollars to spend on patent litigation. While massive corporations can get nailed for a billion or two and hardly notice.
A patent-litigious environment is deadly for startups. And startups are crucial innovators.
But his argument was clearly fallacious. In one sentence, he implies that correlation proves causation, followed by an attempt to frame the debate on his terms by definitively dismissing the claims of the opposition.
These are not tactics used in honest debate. They're being used to discredit the opposition and sway third parties.
I see that as cut and dry. If you don't, we're going to have to agree to disagree. But I stand by what I said, and its relevance to this discussion.
In other words, he says that innovation is occuring at a rapid rate, therefore the patent system isn't broken. Sure, that's not him arguing via correlation, but nonetheless that's a logical fallacy. And that's intellectually dishonest.
I am not claiming that my opinion is proven. The data does not exist to have that level of certainty either way.
I merely have a strong belief, and do not outright reject the notion that Mr Kappos could be right.
To do so would make my arguments as intellectually dishonest as his, and I believe that to be unacceptable no matter which side you're on.
It's as though he sees litigation and prosecution as beneficial to our economy, instead of seeing the ways in which it blocks innovation and free market actions.
Well as a lawyer, litigation and prosecution are very beneficial to his local economy.
As a general rule, litigation is a sign of activity. The more economic activity you have, the more interactions and transactions you have, the more conflicts that arise, and the more litigation you have to resolve those conflicts. The litigation itself is of course overhead, but the fact that there are many conflicts can be a sign of an industry in which a lot of things are happening.
As I'm sure you are aware, not everyone thrives in conflict. Some would much rather design a system to prevent it. I can't help but feel that this is similar to claiming that there must be a lot of fun happening on the school playground, because a lot of bullies are beating up the kids who just want to get along (and, occasionally, other bullies).
A more apropos playground analogy might be skinned knees. They are of course not a good thing in and of themselves, but if you have a bunch of kids running around and running into each other, you're going to get skinned knees. The more kids you have running around and the more active they are, the more trips to the nurse's office there are going to be. You can make the playground safer, tell kids to be more careful, etc, but at the end of the day kids getting playground injuries is correlated with kids playing.
We could clearly today have either more or less protections: you can pretty easily imagine a system with less patents or one with more and stricter forms of legal protection. A system with more forms of protection would probably see more legal battles. A system with less protection would see more market battles with focus on winning over consumers vs juries. The system we have today isn't some divinely revealed sweet spot, so the attitude that "conflicts are inevitable and this is how we solve them, thus there's nothing we can do about it" is disingenuous.
With the penalty that both the nurse and the injured person receives $1 from the person who caused the skinned knee. You can make the playground safer and tell kids to be more careful, but you'll still see Bruno falling on purpose and blaming Mary to the nurse.
People assume that there are more of the fakers than the pushovers, but most of the studies I've seen of the legal system show that there are way more people who fail to enforce their rights than there are people trying to game the system. E.g. only a small fraction of medical malpractice claims are clearly not meritorious. On the other hand, only a small fraction of those who have a legitimate malpractice actually sue. The same is true for environmental harms, etc.
I also disagree that conflict in the form of litigation is an unavoidable consequence of technology innovation. To a small developer, there's little effective difference between patent litigation and a bullet in the back of the head. They're both a death sentence, except the bullet would be over quicker. Instead of streamlining the process of executing small developers, courts and legislators should remove the actual threat.
I should note that, though I disagree with many of your points in many of your comments, I do value the alternate perspective you bring to patent-related discussions on HN.
So the debate should be about whether patent rights are in fact legitimate and beneficial regulations, taking into the cost of compliance but also taking into account ways in which those costs may be minimized through the structure of the law.
I think there are ways to structure the patent law, with bright-line defenses, so as to make defense of a suit extremely quick and cheap even by pro se litigants. One example would be requiring some sort of evidence of intentional copying as is required for copyright infringement.
The problem is that people are patenting non-innovative stuff. At this point one could write an automatic patent generator, much like domain name generators.
Or we could have the Patent-libs (like ad-libs).
Software that runs on [DeviceType] that has [ShapeOfCorner] and allows the user to [DigitalVersionOfNaturallyOccurringAction] which produces [ObviousOutcome].
Boom! Prior art to invalidate future bullshit.
Excerpt from Accelerando by Charles Stross (cstross). Emphasis added.
I would love to see some sort of legal patent pool that grants free licenses only to entities that either do not have patents themselves, or which have granted licenses for all of their patents to other members of the pool. The trick of course is getting such a pool to a critical mass that joining it and licensing all your patents to it becomes worth it.
"It requires entities licensing their patents under the DPL to license all of their patents under the DPL, with free licenses granted to all other DPL participants.[4] DPL participants remain free to launch patent lawsuits against non-participants."
So they do. Using the patents in the pool.
Innovation is happening at a breakneck pace despite software patents because everyone is just ignoring them and inventing anyways.
The patents do damage after the fact, killing good tech jobs by diverting money from engineering and R&D to the zero-sum game of patent litigation that just leaves society as a whole poorer.
TBH, I don't know how many entrepreneurs opt out of entrepreneurship due to the risk of being sued down the line, but I doubt that it is very high. Most of the entrepreneurs worried about patent litigation will just start amassing a patent portfolio of their own as a defensive strategy. The end result of that game is less progress since innovation efforts are diverted to patent defense efforts.
I don't know about everyone else here, but I would love a conversation on a national scale to discuss jobs that don't move the country and humanity forward, but just move cash from one pocket to another without benefitting anyone but the people moving the money. Wall street financial innovations, patent litigation and the TSA are just three examples of areas that have experienced job growth in the past 20 years (even with the 2008 meltdown), but that do little to nothing to improve the human condition. For some reason, the more we automate jobs and increase the productivity of the American worker, the more we divert our attention to creating jobs that don't add value.
That's not zero-sum.
A stout defender of the status quo.
It is the same reasoning why paying people to dig holes and fill them in isn't actually economically stimulating. If the fruits of labors expended serve no practical purpose, they are an effective money sink that slows down the economy.
unfortunately, the patents purchased are not likely to be useful (in the sense that the creation of that patent brought value), and i think this is especially true in software patents. I say so because i expect that those patents purchased are already used by various software engineers (probably unknowingly). The creation of those patents did not add value, due to the fact that no creative forces were involved.
In a real arms race, the race to produce weapons might induce economic activity because metal needs mining, manufacturing and jobs. This does stimulate the economy, and you can construe that theres some benefit to be had.
For software patents, it does not stimulate anything! Perhaps lawyers who gets paid drafting it, but actual creative output isn't there, and so it is a net drain to even create the patent.
That may very well be the case; I was clarifying the incompleteness of the argument, not advocating software patents.
"In a real arms race, the race to produce weapons might induce economic activity because metal needs mining, manufacturing and jobs. This does stimulate the economy, and you can construe that theres some benefit to be had.
"For software patents, it does not stimulate anything! Perhaps lawyers who gets paid drafting it, but actual creative output isn't there, and so it is a net drain to even create the patent."
Please explain the difference between paying a lawyer to write a patent that adds nothing, and paying someone to dug up and manufacture a bullet that sits in a chest somewhere, serving as a deterrent.
Two things I can see are 1) the people being paid to mine and machine are probably less well off than the lawyer, so there may be an (arguably) helpful redistributive effect; 2) mines and machine shops have huge fixed cost - having invested that, other tasks may be able to piggyback. I am slightly hesitant in concluding 2 - while the effect itself seems reasonable, I may simply be unaware of useful infrastructure supporting the patent process. Is there something additional that I am missing?
The problem here is that this kind of mechanics can suck up unlimited amounts of money for little absolute value, as you're paying for the relative - to just get better than your opponent. It's the same problem as with political campaigns - a ridiculously huge waste of resources with no theoretical upper bound, just to influence how people choose between few available options.
"Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!"
On the second thought I think this might just be a sign of my confusion in the topic. I somehow always conflated the two ideas into one.
The accumulation of such 'societal overheads', as entrenched systems act to grab more resources for themselves at the expense of everyone else, is a common factor in all civilizations. Specifically, it's a common factor in the process that ultimately leads to the collapse of complex societies.
Read the book 'Collapse of complex societies' by Tainter. It's a study of failed human societies throughout history, and the common factors in their process of collapse. Yes, it turns out there is a single, driving common factor. Complex societies go into violent, chaotic and permanent collapse, at the point when their available resources (of all kinds, including manpower, energy, knowledge, food, water, etc) become less than the resources required to maintain the social infrastructure. At that point there's a rapid structural implosion, with failing infrastructure leading to inability to allocate resources to maintain the infrastructure - a positive feedback process that bites hard. Usually, almost everyone dies.
The snowball can begin when some external challenge requires an extra expenditure of resources - which are not available. Or it can begin simply because the social structure grows too complicated and parasitic, thus exceeding physical limits. Human societies almost never seem to be able to collectively say "hey, we don't need all this useless crap, let's simplify!"
The patent system, copyright, and indeed most if not all of the Federal Government and related structures like the Federal Reserve Bank (three things it actually isn't) as they are now,are all examples of wasteful, parasitic overheads with net negative benefit to American society. Which are major factors bringing society closer to systemic collapse. The energy crisis is rapidly lowering the 'available resources' ceiling, while all these parasitic, self-serving layers of social/legal complexity are inexorably raising the required resource expenditure. Maybe these lines on the graph have already crossed - there's some inertia and lag in this process, but it's still a mathematical reality that can't ultimately be avoided.
Personally, I consider the entire legal framework of corporate personhood, stock holding and the abstractions of social responsibility, finance and control that creates, to be another massive layer of harmful complexity. Creating 'inhuman' immortal entities which then grow to direct most of society's resources and control most of the media and government structures, seems like a very, very bad mistake. The present insane state of the patent and copyright systems is merely a side effect of that more fundamental error.
By now the entire corrupt, self-serving octopus of corporate/government parasitism is probably too entrenched to 'simplify' back to a sensible, workable level via methods available within the existing system.
Personally, I'd say the optimal level for such things would be 'gone entirely'. I'm aware most would not agree. I've also long felt that without a second American Revolution, there's no chance of making any progress in cutting back these existence-threatening layers of self-serving complexity. Lately it seems like I'm not so entirely alone in that view.
...Federal Reserve Bank (three things it actually isn't)...
Also way back in 2004, Alan Greenspan, then chair of the fed, questioned patents. http://www.federalreserve.gov/boarddocs/speeches/2004/200402...
Even those that don't hate the fed can get behind hating patents.
Not what was actually claimed. Non-inhibition is not the same as a boost, now is it?
The head of the USPTO isn't even willing to have an intellectually honest debate on the subject. It's pretty clear that change is not going to come from within.
The USPTO doesn't make patent law. It's an administrative agency. The guy's main concern is servicing the ever-increasing number of patent filings, which are what finances his agency. If you want change, ask for the PTO to be funded by taxes instead of filing fees.
The patent system is a feeding trough for parasites, little more.
That, as we enjoy great advantages from the inventions of others,
we should be glad of an opportunity to serve others by any invention of ours;
and this we should do freely and generously.
- Benjamin Franklin
If Biotech worked the way software did, you would be able to patent "A combination of chemicals inside of a pill that cures headaches".
What I also find remarkable is how much actual research in biotech is done with public money. And how much big pharma spends on marketing, as opposed to actual research.
http://www.huffingtonpost.com/2012/08/09/pharmaceutical-comp...
I think India's take on pharma products is enlightening. The pharma industry has managed to effect some self-serving changes in India's patent laws. However, as we speak the Supreme Court of India is hearing a case of particular interest.
http://theconversation.edu.au/david-and-goliath-novartis-cha...
Oh my god. That is a terrific analogy. I regularly talk to people who don't understand the horror of software patents and have been trying to come up with a good example - this is perfect.
Conventional wisdom for a long time considered software more like a book (or else the "author" of the first spreadsheet would probably be a billionaire many times over).
When the legal industry saw the money involved in software during the dot-com boom they muscled their way in, as any racketeers would do. Their racket is of course protection and counter-protection services riding on the conveniently-broken USPTO.
http://en.wikipedia.org/wiki/Copyright_Clause
That being said, the Constitution isn't some holy un-flawed document.
He has good intentions. He worked hard to get provisions in the new law that would allow his office to fix the most egregious problems.
They are opening the first satellite patent office in San Jose specifically to address software and technology hardware patents.
I have to agree with him -- we need to give the new laws a chance to work. They just went into effect a few months ago.
It's the hill-climbing problem, and empty rhetoric, illogical propaganda and protection of special interests is preventing a policy that is far better for innovation, and the country, as a whole.
But there's no reason software patent critics should believe that he's solving the problems, given the history of patents in the US and the contents of this article. What he should say: "'Amazon one-click' is a low-quality patent", "we judge XX% of software patents to be low-quality", and "our reforms will reduce this to Y%". Until then, keep making noise.
The problem is that software patents are in fact fundamentally broken. Think about it this way: does it make sense that the patent rules should be the same in fields as different as software/web/internet and pharmaceuticals/biotech -- where the innovation cycle, product lifecycle, and R&D costs are so dramatically different? If we had to design the patent system from scratch, would we put in place the same rules?
The reforms may help a little on the margins. But more fundamental change is needed in the software arena.
Though government is adept at yielding to special interest and industry groups, fundamental change may be difficult to hope for if the software industry is the lone voice at this point.
I think the difference is that most engineering industries are very capital intensive. Defending the occasional patent lawsuit doesn't seem so onerous when your capital expenditures are measured in the hundreds of millions or billions.
http://www.denverpost.com/politics/ci_20981965/denver-get-u-...
I thought it was worlds lawyers wet dream and laughing stock of everybody else.
I can't remember one mention of US patent that was not grotesquely funny. I heard nothing of sorts about patents of any other country. The only thing I heard about those is that they are hard to get, expensive and short lasting.
You can be in favor of some without being in favor of all.
In 10 years, even crowds of people learn about the medium-term implications of legal doctrines. 10 years ago the implications of software or business method patents weren't all that obvious. Only a few radicals were warning against them - someone sold everybody else on an emotional basis.
"Intellectual Property" in haste, repent at leisure, as Ben Franklin might have written, if he had understood the implications 200+ years ago.
And thanks to software patents and copyright that's finally over.
But anyway, well played knocking down a straw man based on a point only tangentially related to the real issue. Thanks for that!
Copyright needs to be enforced, but on a narrower set of IP. Patents should actually be innovative, unique, and original. Copyright should be specific, with broad fair use and protected status for parodies and satires.
The problems with arguments like these is that the are talking about a perfect system. In reality you will just not get such a system, that just not where the insentives for change of the system go.
There are so many goverment agencys, that have some nice intent but ultimilty end up doing nothing (or in some cases to opposite).
Bringing democracy to the third world. Forign Aid helping dictators. Free Trade Agreements that ristrict trade. The list goes on.
Its not the best wikipedia article but I think public choice theory clearly states that these kinds of institutional changes are just not going to happen (http://en.wikipedia.org/wiki/Public_choice_theory).
Crying abolish as loud as you can together with everybody else that has the same insentives, like start ups, bigger companys that do not have as many patents and political partys that are not in the goverment.
Institutional change allways hurts, or is unfair to somebody but institutonal change must happen anyway.
> Even the GPL depends on copyright enforcement
One could well agrue that the GPL only exists because there is was copyrights. Stallman would not have had all the trouple with the lisp maschine without copyrights. The lisp maschine code could have been used by both companys. Maybe we would all work with lisp maschines now (let a man dream).
I remember Stallman saying something along the lines that GPL is using copyright against itself.
So I don't think GPL "depending" on copyright enforcement is a valid point for IP enforcement.
GPL is just specifically tailored for the current system and would just morph to something else if the legal climate changes.
The advantages of sharing would remain: everyone with more access, a larger number of people to help improve the software.
The pro-copyright claim is that the current system provides incentives for more software to be built than the absence of copyright would; but that's an economic model without experimental validation and not even as reliable as tested economic models (e.g., Keynesian stimulation/damping).
This guy has huge ties to IBM, I'd have a very hard time believing he has the public's best interests in mind. He's more likely to pass laws which would help his rich friends instead.
Note that I'm not a strong believer of government to begin with. My rationale is that if society is anything like software development, management should be seen as counter-productive.
The people living in democracies without lobbying wholeheartedly agree. We genuinely can't believe you let it happen.
By voting for all issues directly, like it's done here in switzerland.
Other systems where you vote people into office to do the actual decision making for you can hardly be called democracies in comparison.
In many US states, they allow ballot measures, but they are often worse than the options that would come out of the legislature because of the free for all nature of advertising for them and the general public's lack of knowledge of the details of the proposal. They do, however, allow issues such as gay marriage/pot to come up if it's too controversial for the legislature.
Your assertion that you and others live in democracies without such a process is false. Moreover your implication that lobbying is wholly negative and unique to the American democratic system undermines your position and demonstrates what appears to be a bias against the United States in general rather than an honest critique of the way lobbying is conducted in that country.
Yet de-facto in the day-to-day it is not you-and-me average citizens lobbying at the highest level but HugeCorps because they have the connections and means to pay the right lobbyists that actual average citizens could never afford...
And the very word itself already has a bad connotation. It is not "democratizing" or "participating", it is "lobbying" and nobody associates a positive, generally beneficial democratic process with that.
This guy is just a mundane man defending his existence. Nothing more, nothing less.
[1] The right to petition your government.
If you think that, in the abstract, the government should be able to favor/disfavor particular businesses (e.g. mandating Ethanol in gasoline, taxing tanning salons, prohibiting large sugary-drinks, etc) then the logical consequence is lobbying to ensure that your particular business is favored or at least not disfavored and that right (the right to petition the government) is built-in to our Constitution.
The way out of this mess is not to try to micro-manage lobbying (e.g. it is OK for a non-profit to lobby but not a for-profit or it is OK for individuals to lobby but not on behalf of a corporation) but instead to tackle the larger problem that governments should not be micro-managing the economy.
So argue for things like removing loopholes and special cases from our tax code, ditching all sorts of direct subsidies to favored entities (PBS funding, for example), and otherwise advocating for simple, consistent, and broad-based government policies rather than complex, inconsistent, and narrow government policies is the right direction, IMHO.
I'm not holding my breath, though.
Simple. Consistent. Transparent.
These should be the guidelinses of every goverment agecny.
That why I am for things like the flat tax, NGDP targeting (monetary policy), open data goverment ...
The good side of lobbying allows for some interest group, lets use the people who do commercial fishing in the gulf as an example, to pay attention to their interests and let someone know about problems in legislation they foresee or notice after the fact. Without them, each congressman (or some subset of them) would have to employ someone who knew a thing or two about marine/environmental biology to read all their legislation for ways that it could harm x. It's really unpopular for congress to spend money on itself, so this probably wouldn't happen and we'd ignore environmental impacts of a wide variety of things.
This, of course, is in theory. I whole heatedly agree that the balance of power between interest groups and of interest groups isn't at any sort of ideal point, but I can't see removing their ability to communicate with politicians as a good thing. Lobbyists do a whole lot more than just donate to crooked politicians.
I think many people doing business in China are more concerned about trade dress (fooling people into thinking that their item is the "legitimate" thing).
Edit: rather than patents. I also think copyright and trademark are big concerns. I don't think patents are.
The example you gave is copyright violation. My claim (poorly worded the first time) is that patents are not what most companies are worried about -- they're more concerned with copyright, trade dress, and trademark.
But you have a really hard time figuring out if you break some patents while developing software. Even lawyers and courts often have a hard time figuring out if something steps on a patent or not. As software developer where you develop new things every day you can basically only close your eyes and code on hoping you don't trigger too many patent mines. Patents belong as little in writing software as they belong in writing other things like books, articles or speeches.
Take it another way. Write software in the US, and as soon as you're making money, you run the risk of being sued by a patent troll in Eastern Texas. Write software in France, you run no such risk (some would even maliciously say that you don't run the risk of making money).
I don't think anyone can say "yes the patent system is broken" or "the patent system works fine" definitively because it's not a cut and dry issue. You may argue that patents are a disincentive to innovation while others feels differently. It's really an ideological issue. It's subjective and not objective like people want to make it.
Furthermore, everyone out there yelling about how we need to rebuild the whole patent system from the ground up again or abolish it altogether are really the ones who need to give it a rest. We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.
That said, I can't stand behind Kaposs' statement that pace of innovation is evidence of the patent system working. Did he even hear himself say that? What's his definition of innovation? Sure, we have lots of touch screen devices with different names coming out every single day but is that innovation? But really that's neither here nor there. The pace of innovation and the patent system working are wholly unrelated.
I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason. Again, I swear its an honest question and I have an honest observation. To me, because no one has explained it to me yet, it seems like there are a few trendy startups and companies out there who got burned by the patent system. So then they threw a fit about patent reform. The HNers and Silicon Valley types picked up on this and now its the hip new cause to support. It reminds me of when being anti-copyright and pro-piracy became cool. They seem to have this really nice sounding ideology behind them that's very easy to adopt and so people do. But to me, these ideas, which in a perfect world would work out great, seem divorced from reality. In the case of startups/companies lobbying for this, don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.
We could, its in the right of goverments to do that.
> That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.
Thats hard to predict and otherwise its a really bad argument. It remindes me of the argument against lowering inflation. Yes lowering inflation will always creat problems, sometimes even very bad ones but that is no reason to just keep going.
Taking a stand and hit the problem in the face, deal with the consequences and from there on build on a much more solid ground like we did in monetary policy.
> I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason.
I for one think that it is simple a ineffective system that will just harm the economy and the social live more general (specially in the case of copyrights).
From a purly economicl view it seams clear that all form of IP are harmful. Resources that are not limted do not need a propery rights system. I can not prove this (and I think nobody can) the benefits from copying are much much greater then the benefits from improved insentive.
If you look at sientific discovery and innovation, how it works is many small steps and improving little by little. Revolutionary discoverys do not happen very often.
There are many reason this is specially true in practice. In the real world the patent system is ruled over by a goverment agency that is (like any goverment agency) subject to lobbying and other problems discribed in public choice theory (http://en.wikipedia.org/wiki/Public_choice_theory).
> don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.
Sure they would. I would too. That is exactly why we have to change insentives. As long as the system is as it is people will have the same insentives (an we all know what these are).
The most importend economic book you will every read will just say "insentive matter" on every page.
I do understand. I think its a valid point but I also think the hype throws a lot more attention on the issue. Attention that is rightly there.
I wouldn't. For many of the "I shall take advantage of this system" person/company out there, there are thankfully examples to the contrary. Redhat. Google. Sun Microsystems (RIP).
I'm convinced that the reason this issue is being aired more often now, is because the greedy kind (the trolls and unscrupulous management of product/service companies) have overplayed their hand. They have gone a bit too far with all this aggression, and I for one am very glad to see people respond in kind.
This isn't reddit. Stop.
The current state of software patents is such that a company can stock up, lawyer up, then sue out of existence any attempt at competition. They were invented to promote innovation, not stifle it. I honestly have a hard-time imagining any competent programmer standing behind half the garbage that passes for 'innovative' patents. It would be one thing if it were just patents that were not being used, but its taken to court, succesful cases that prove the point. One-click purchasing? One-box multiple search? Companies are patenting anything they can think of - the most obvious and minor of innovations - and succesfully pushing others out. That's anti-competitive in its aboslute purest.
> We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution.
Most people aren't anti-patent et al - just anti software patents. A more apt analogy would be wanting to re-write a specific interpretation of a specific clause of the constitution.
> it seems like there are a few trendy startups and companies out there who got burned by the patent system.
Read more. Companies large and small regularly get burned by ridiculous patents. Like Android removing unified search (http://www.zdnet.com/samsung-galaxy-s3-loses-unified-search-...). That's absurd.
If companies were providing actual evidence of specific, long-term, expensive investments that resulted in software innovation, with a compelling case that it would not have been invented otherwise (aka a high school coder couldn't possibly mimic it), then yeah, maybe I coudl see a justification. But the current "just show us that there's not other patents out there that did this alreadY" can only be justified by one means: "I'm a lawyer, and I want to make a good living". Case in point - David Kappos.
Here's a perfect example of a bad patent screwing a company out of a product they've been making for years: http://luma-labs.com/blogs/news/4540122-an-open-letter-to-ou...
(Summary: Competitor gets an illegitimate patent approved, and now a company that has been "infringing" on that patent since before they applied to get it has to stop making their product. Why? Because litigation will likely put them out of business, even if they win.)
I'm not against the idea of patents, but the direction they've been going in recently, in fact the direction our entire economy has been going in recently, has been that of favoring those with the money to blow on hordes of lawyers capable of interpreting and navigating the legal minefield they themselves have lobbied to create.
The wealth that cannot be stolen, neither abducted by state, nor can be divided amongst brothers, Neither it is burdensome to carry, The wealth that increases by giving, That wealth is knowledge and is supreme of all possessions
Intellectual 'property' is an oxymoron. The treatment of knowledge like a physical asset in that, it must be possessed and contained, is an exercise in futility.
Think about it - if the PTO stopped issuing software patents today, we'd still have over a decade of software patent litigation.
The real problem is our legal system - it is too expensive for a someone accused of patent violations to defend themselves. Even if you win, you are still going to be bankrupt or severely weakened by legal fees, and all you've "won" is the right to continue doing what you were doing in the first place. This is the only reason patent trolling is so successful - nobody can fight back.
Start requiring entities who file patent infringement (and other) lawsuits pay the defendants legal fees if they lose, and require an upfront bond (because otherwise they'd just sue with shell companies and declare bankruptcy if they lost). Everyone is going to be concerned about how this hurts the proverbial "little guy" and his ability to sue a big company that has taken his idea, but the little guy is already getting screwed by patent trolls - a big company like Google or Apple has the resources to fight patent litigation, but even one lawsuit is likely to be lethal for a small company. If the "little guy" is going to get hurt either way, I'd rather we tilt things to be in favor of the defendants.
I don't think anyone has been arguing that innovation is no longer happening, but rather that the mess of software patents is making it increasingly difficult for newcomers to enter the industry.
I also like how he completely dodged the question of whether software patents should be allowed at all, from a philosophical perspective..
This is lawyers talking to (and for) lawyers. This doesn't concern engineers or consumers.
Seriously, did anyone think a department whose "business" is to accept fees and keep patent examiners employed is going to shrink their market domain? There's plenty more regulatory jobs to be squeezed out of the innovation business to be had yet, this time on the back end.
Here are some awsome podcasts on the subject: http://www.econtalk.org/archives/public_choice/
There are also podcasts about Mises and many other intressting things on there.
Now I'll write two letters per week.
Retaliatory defense doesn't work against trolls, who have nothing to defend. Even if the troll company folds for whatever reason, you can just pass the patents to another shell company and start again.
For the IBM lawyer and others saying that the patent system doesn't need reform because there were patent lawsuits 100 or so years ago, please cite an example of the trolls that Rockefeller, Edison faced.
EDIT: Just to clarify my last few sentences. Software patents seem to reward the wrong thing. It seems to me that the innovation occurs in the very act of specifying the requirements for the software. In a sense, the software that best implements the requirement is less a creative invention and more of a discovery. Now, I agree that there should be some kind of reward/prize/compensation for companies that choose to pursue unusual goals but I'm not sure that patents are it. Favorable market position may be reward enough.
From the OP: "The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation," Kappos said. "It's natural and reasonable that innovators would seek to protect their breakthroughs using the patent system."
Or maybe...it is natural to file patents as fast as possible to protect ourselves from an increasingly broken system?
It'd be nice if companies could be restricted on the number of patents they could file per year. Let's say a company with 1-10 people can file 1 patent per year. 11-100 people => 5 patents per year. 101-1000 people => 10 patents per year. 1001-10000 people => 50 patents per year.... Then maybe companies would only file their most important "breakthroughs."
Of course, this system would mean that we would have fewer patent prosecution lawyers, and maybe even fewer examiners.
The best way to undermine patentability is to publicly disclose the invention in advance, thereby creating prior art that no one can patent.
To me, the simplest solution would be "CantPatentThis.com" where you disclose your ideas/sketches. Think GitHub for ideas, not necessarily working code.
Thoughts?
Probably a better set of reforms that would solve a host of problems: * 5 year patent length limit * Nontransferability of patent (can't sell IP, say) * No software patents. If it's written in code, get a copyright.
> He noted that during a time of growing litigation in the smartphone industry, "innovation continues at an absolutely breakneck pace. In a system like ours in which innovation is happening faster than people can keep up, it cannot be said that the patent system is broken
Innovation happens in spite of the sick patent system. Not because of it. I.e. if not for the system, innovation could have been even faster.
> Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended.
This is lunacy. He suggests that the point of the patent system is increased litigation? He should look in the constitution more often.
To an extent your likelihood of a shakedown is tied to your market share, but not necessarily.
As a rational person your instinct that your work was developed independently and/or earlier or other well-known work is prior art is irrelevant to the parasites because they are not interested in facts, only money. You can only hope they don't try to kill the host.
Without naming names and amounts since settlements are bound by secrecy, I'd like to hear some (hopefully successful) battlefield stories of handling the dreaded troll letters and blind-side lawsuits?
And, of course, we have copious illustrations of how he is wrong (and how he is right). So perhaps we should spend the time to determine if patents "always create a larger incentive for innovation" or not.
Moderate today's consumption, what does that even mean? Save your innovations for the children? No, thank you, I don't want to slow down progress so that your friends can make more money.
In my experience, the objections to patents are from innovators: Let me invent without paying people who have been trying to landgrab the intellectual frontier. (This is good because it reduces barriers to innovation).
Form an alliance of companies that boycott people who abuse patents. All these companies pool in their patents and form a super patent alliance. Given a large number of patents, anyone who want to fuck around with patents gets black balled from the Super Patent Alliance.
What a prick.
He doesn't seem to understand what's going on or why we're angry.
Nice non-sequitur.
Look at the fashion industry. Thriving and innovating, with 0 patents.
Trademarks Yes / Patents No
I wonder how he would define "low-quality software"
Not. Bloody. Likely.
I'd really like to meet the people who sit around envying a patent system. I mean, seriously, how many people can there be that understand patent systems to the detail required to separate the US one out from other first-world nations (since this comment really is a jab at contemporary nations), who then sit around envying it?