Why didn't we patent the spreadsheet? Were we stupid? (1999)
bricklin.com
bricklin.com
I don't think software patents should be granted but clearly there's an incentive to patent as much as you can.
It used to be that you could patent specific implementations, and of some one could come up with a better implementation, they could patent that. Nowadays, it seams like you can patent just about anything, regardless of whether or not it can be implemented at the moment. It would be like the Wright Brothers patenting "a flying device that uses an engine and a propeller" without ever even trying to build one.
Patents, in theory, apply to methods rather than concepts, so if someone does patent "a one click shopping button" they should only hold patent for their implementation.
The problem is both the misapplication of patents which appear to grant patents over any implementation, as well as patents over implementations which are too simple, such that anyone who wants to build a similar item would go to that implementation as an obvious solution.
No they don't. The patent system was developed to encourage inventors to make their inventions public knowledge for the public good. It was never about encouraging invention, the limited monopoly was the means to and end, unlocking trade secrets for the public good. You've confused the means for the motive.
The results of the patents the Wright brothers were granted is quite evident if one compares the state of aircraft during the first world war - USA was woefully behind everyone else, mostly because the Wright patent(s?) stopped aircraft innovation there until it expired.
Also, it wasn't at all clear what the way to invent flight was going to be. Most people were trying an approach called something like "inherent stability" where they were trying to design their aircraft so that it couldn't crash. I.e. instead of giving pilots three axis control, they felt it necessary to design their aircraft so that pilots didn't need any control. So it may be obvious in hindsight how to invent flight, but it was extraordinarily non-obvious at the time, as every invention is.
We'd certainly like to believe invention happens for the sake of invention, but empirically dollar signs make the world go 'round.
A crude though reasonable way to estimate how inevitable a development was is to look at the period of time between when the prerequisites for an idea were created, and when the idea itself was created. Some ideas, such as the phonograph (which could have been created at least a few centuries earlier) have a very large span of time between these two things. These ideas could plausibly have been "missed" if circumstances didn't align. Other ideas were devised shortly after their prerequisites. Liquid fuel rockets burning LOX and LH2 were first considered by Tsiolkovsky just two years after hydrogen was first liquefied. Goddard did not know of Tsiolkovsky but that hardly mattered, that idea was inevitable. He, instead of Tsiolkovsky, went through with the idea.
In the case of the Wright brothers, powered controllable airplanes hit the scene quite shortly after suitable engines were feasible. They deserve credit for being the ones that actually did it, but there is really little reason to think that there was ever a risk of a future without planes.
"Wilbur was thirty-two years old in the spring of 1899. He realized that now was the time. He needed a challenge, a measure of himself—a problem that matched his skills and abilities. The recognition that flight was such a problem did not come in a blinding flash of insight, but grew slowly during the years 1896-99."
He'd been interested in flight since he was a boy.
Yeah, not a primary source, blah blah blah, but lots of citations in there.
While they were busy trying to enforce their patent, they stopped innovating, and their competitors kept moving forward, exploiting the market the Wright brothers created.
But back to software patents, if the real societal good of patent law is disclosure than there is no need for it at all in the software world. As soon as Visicalc sold their first spreadsheet every programmer knew how to build one. There is no benefit to society to grant the monopoly in exchange for instructions on how to build a software idea.
The straight forward way is to give a financial incentive for inventors to tinker and come up with new ideas.
The way you're suggesting is to give inventors (that are already inventing without need of incentive) an incentive to disclose their invention and then that will promote other inventors to build on top of the invention even though they will have pay the original inventor for the privilege.
My point is that neither of these methods are effective at promoting progress in software.
No, we're discussing the reason patents exist.
> The way you're suggesting is to give inventors
I'm not suggesting anything, I'm simply stating why patents exist.
> My point is that neither of these methods are effective at promoting progress in software.
Software should not be patentable at all, so we're not in disagreement there.
The reason patents exist, as you've repeatedly asserted, is to promote the progress of science and useful arts. We are discussing two mechanisms by which that might be accomplished (and by which it is quite arguably accomplished in some fields).
Then our discussion is over as that is the only point I was making.
> We are discussing two mechanisms by which that might be accomplished
No we are not, as how to accomplish promoting science was not anything I commented on at all. You may be trying to discuss it, but I'm not interested in that digression.
That is explicitly what you commented on, twice. I can go into more details if you need them, but geeze...
"[M]otivating inventors was not the purpose of patents, it's merely the side effect of the method used to get inventors to give up their trade secrets."
I quote you again:
"[M]otivating inventors was not the purpose of patents, it's merely the side effect of the method used to get inventors to give up their trade secrets."
Let's break this down a little:
"X was not the purpose of patents, it's merely a side effect of the method used to get Y."
And now you're claiming you weren't talking about X and Y?
Note that I've shown this to others, and they don't understand your position either, so if it's brain-damage it's not uniquely mine.
> Correct, the goal: "To promote the Progress of Science and useful Arts", i.e. make trade secrets public
I could just as easily say:
Correct, the goal: "To promote the Progress of Science and useful Arts", i.e. encourage people to invent.
My point is that it was left up to us as a society to interpret those words, and just claiming that your interpretation is the correct one does not make it so.
No you can't, inventions that aren't public don't promote the progress of Science. Science is by it's very nature a public endeavor.
> My point is that it was left up to us as a society to interpret those words, and just claiming that your interpretation is the correct one does not make it so.
It is so because words have meaning and under no interpretation can promoting science simply mean to encourage invention because invention alone, without making the knowledge public, does not promote science.
So "useful arts" doesn't refer to writings? How about "writings"?
I think that the most important secondary effect is that it puts all inventions on a more of less level playing field.
Inventions that can't be kept secret due to practical limitations(like the cotton gin, or the steam engine) are just as valuable as inventions that can be hidden (computer programs, chemical processes, etc.)
Because you can't know that someone can't reverse engineer what you're doing. The patent gives you legal recourse and a limited legal monopoly.
Of course not. But it remains true that your original argument doesn't work here.
I imagine you're generally against software patents. So am I. But don't hold up VisiCalc as a poster child for software development without patents, because in the long run it was very much a failure as a product, and the company that sold it went broke, while this might not have happened had they patented it.
And thats the way it should be now. I dont think you should be able to patent math, dna or the air we breathe
Why didn't Google just copy Facebook and Twitter? Those would be easy apps to copy in the state they were when they first got famous.
It doesn't happen because its harder for people to copy ideas than you think it is. If you write software for a living and work in a big organization you will understand that they don't have a magic wand that they can just wave to make new products appear.
Network effects and jealously guarding their data. These days the technology is not nearly as important as the data.
Learn how to do this instead of learning how to just invent a Thingamajig.
Then you can consistently make Thingamajigs that are first-to-market products with great branding that people will choose over your competitors products.
Patents aren't needed. Copyright protection is.
People should be allowed to have their own namespace in the public market and it is beneficial to have a system of government to enforce this. We don't need to protect anything else.
Or do you prefer that the little guys spend millions of dollars against the big guys in court?. Who of course have thousands of essential patents each that the little guys infringe.
But that is exactly the way it happens now: the little guy can consider himself lucky if he is not the one to get sued both by big companies AND trolls.
In the software world the problem is just utterly insane, but this is a general feature of the patent system.
The USPTO has processed 16,020,302 applications in its history. Obviously many of these are from big business, but many are from individuals. Why haven't the individuals figured out by now that they are worthless? Why do they keep falling for it?
Few (or zero) people believe that patents are universally valueless to the patent-holder.
What is widely believed, especially in the field of software, is that society would be better off without software patents. In particular, that "Progress in Science and the useful Arts", at minimum in the area of software, would proceed faster without patents. Whether or not it would be more just is less widely agreed upon.
Of course, many stakeholders profit from the existing regime. Some of those say "patents are good", some say "patents are bad, but while they exist, will shall use them".
I'm not so sure - I'm founding a nonprofit to find out if this is true.
The problem is with the protection of "inventions" which are obvious or non-innovative, not with patents of one type of invention over another.
This becomes a problem, though, when math essentially does become patentable, because it means we've barred people with the best background to review these patents from the profession that reviews them.
All in all, I think eliminating software patents is something that should be seriously considered. Maybe just use copyright? It's not an easy question, so I don't mean to be glib here. But eliminating them should at least be considered as one viable option. The current situation is really bad.
Software patents is not even about code. Almost nobody that patents software makes code public accessible. With a patent you are supposed to make public the plans, in exchange of the monopoly.
The idea of patents was that anybody could replicate the work reading the plans, so society advances when the author of the original work dies.
With software patents the code is not there, so it becomes monopolies for abstract ideas, the more abstract the better.
I am just trying to understand the rational behind what is and what isn't patentable.
Is it perhaps a question of applicability? Profitability? Enforceability? Is it a question of a difference in values held by mathematicians v. inventors?
If there is a difference between mathematicians vs. inventors it is an understanding that a mathematical description of a thing and the thing itself are two different things(one of which is patentable).
However a mathematical description of an algorithm is the algorithm. There is no dichotomy. Quicksort isn't "not math, but describable with math", it is math. Same with FFT algorithms, and the Pythagorean theorem. You wouldn't dare say that a "mathematical description of the Pythagorean theorem" is a distinct entity from the theorem itself (and that one of them is patentable)...
Well, some people tried:
Hyperlinks:
(http://eupat.ffii.org/patents/effects/hyperlink/index.en.htm...)
> British Telecom in the 70s and 80s filed patents in the US on the concept of cross-references in hypertext. In 2000 BT discovered one of these "Rembrandts in the Attic" (US 4,873,662) and decided to use it for squeezing money out of internet access providers. Litigation is beginning in 2002-02.
If I invented the spreadsheet today, of course I would file for a patent.
When you invent something really useful that's never existed before... don't you deserve something awesome in return? But I guess they did make some serious money; and consumers benefited from the better implementations (which is why they switched). Ownership would have prevented this particular progress.
I still feel bad for them though.
Implementation, partnerships, marketing (visibility), and growth are all just as important as being first. This is one of the biggest misunderstandings in academia, where the ultimate goal is simply to be published first and recognized most.
Also, one might say Bricklin et al did get the academic reward of being recognized as first; but that ethically, whoever helps people most deserves the greater reward (through implementation that meets their needs; word of mouth that reaches them; ease of adoption; 3rd party support; constant improvement etc).
This probably feels like the ethically correct outcome when you've invented something interesting, however it runs counter to free market economics. Being first can provide a competitive edge but it isn't the only factor.
I was born well after VisiCalc was released. I look back on those years, and wish I could have experienced how "open" things were. It seems like the culture was completely different when it came to new ideas for the most part. Also when it came to sharing ideas. Things were different.
In recent years I've become less and less of a fan of software patents. Only because they are being used to hinder development of new services because they may somehow relate to a very generic idea that someone had. If you're going to get a patent, and will not abuse it...go for it!
Stupid, no. Just happened in a completely different universe...
Hint: the marketplace is the way to get that credit.
AFTER EDIT: Both of the first two kind replies to my comment ask for some more details about what I observed overseas. Early 1980s Taiwan was the land of "Rolex" watches sold on street corners, pirated United States bestsellers in English-language bookstores for tourists, and general violation of patent, copyright, and trademark rights. Every country in the world seems to go through a stage of copying rather than innovating in its economic development. Eventually, as Taiwan democratized, it became apparent that international trade relations would OF COURSE be helped by meeting treaty obligations to protect intellectual property from other countries. Moreover, it was discovered that there are plenty of creative, inventive people in Taiwan, who created more and invented more as gradually domestic individuals and companies received greater legal protection of intellectual property rights. Innovation is hard to sustain where copying is the path to quick riches. But innovation becomes a more reasonable path for investment of personal time and effort if being first to make something new allows some LIMITED time (I'm with everyone here in desiring intellectual property rights not to extend too long in time) to enter the market and see what consumers think of the innovation.
Can you speak on this? Do you feel patent right were weak, or all of intellectual property rights?
I will admit, you can be a great engineer and a terrible businessman, and thus fumble a first-mover advantage, but I don't think patents are the solution to that.
Would you mind elaborating on your experience?
Therefore, the marketplace encourages companies to take a fast-follower approach. Let someone else spend the money to come up with the idea, and then pounce all over it.
The goal of the patent system is to encourage the idea itself, by giving a monopoly to the inventor. In this way, fast-followers have to compensate the inventor for the invention by licensing the patent.
Alternatives to patents -- prizes, research grants, compulsory licensing, etc. -- are also designed to separate the value of the idea itself from the rough-and-tumble of the marketplace.
The problems is that 9 out of 10 times, that idea is derivative of some other idea(s). And you just have to hope that the original idea(s) either aren't patented or have since expired.
You might have missed the "look and feel" reference in the post. Lotus (makers of another spreadsheet, "1 2 3") sued other companies over the look and feel of software that was "too similar" to 1 2 3. Two companies went out of business.
(https://en.wikipedia.org/wiki/Lotus_Software#.22Look_and_fee...)
If only there were a different form of intellectual property, one that grants a limited monopoly over the embodiment of a creative work rather than legal ownership of the idea behind it. Oh, wait. There is. It's called "copyright." And it's (more than) strong enough for the job.
That's certainly one principle. But literally implemented "principles" are often toxic when it comes to public policy. I largely think that's due to a failure to think through the effects on the entire system. The principle is emotionally appealing, but ends up having undesired or even disastrous primary- and/or side- effects in the real world.
In the patent case, we have a Mexican Standoff[1] in that virtually every player is vulnerable (violates one or more patents knowingly or unknowingly) and the only defense is stockpiling more armaments (patents) and shooters (legal staff). The risks and barriers to entry to small players are high. And that doesn't account for the actions of parasitic agencies like patent trolls.
That said, things are largely more open now in practice. The level of interchange of ideas and code is far, far greater now than ever before. That culture didn't die or go away -- it exploded right along with the rest of computing.
You're thinking at the individual scope. When making a policy, a given individual doesn't weight much. Even all inventors put together don't have much moral weight, compared to the rest of the population.
So, patents rewards inventors. That's an advantage. But it's a little advantage, for there are not that many inventors to begin with. There are also the costs associated with the implementation of patents (patent bureau, patent lawyers…), which may be significant, but not much in my opinion. So, on first approximation, we can ignore those aspects, because there are bigger effects, that affect society as a whole.
On the disadvantage side, patents restricts what people can do, and they kill competition. (Of course. They were designed that way. But it's still a disadvantage.)
On the advantage side, patents are an incentive for inventors to invent, and for companies to fund them. The inventions then benefit everyone (starting with rich people, but still).
Now, all we have do do is measure which weight the most. See how patents actually affect society, and decide if it's a net benefit, or a net loss. Either way, try and think about policies which may have more advantages, or fewer drawbacks —or both. Patents are far from the only way of encouraging innovation, after all.
You can see that it's much more complex than the "reward the inventor" principle. Principles are good, but they're often not enough. When you look at actual consequences, you see that sticking to easy to understand principles is not always the best thing to do. Especially when deciding for an entire country.
What a cowardly cop out. If you believe in software patents, I can understand getting one. But to say "I must do X because X is profitable" is ridiculous.
Puts somewhat of a new spin on the debate about it today.
Mostly because our competitors are all multi-billion dollar companies and we need something on our side when the inevitable law suits start flying, and the copiers get revved up.
sigh It annoys both of us founders to no end, but I don't see another option given the legal environment in the US today.
You should consider licensing your stuff through one of the companies that works to ensure that your stuff is in the commons.
If anyone had a dispute then they could set up a special court or process for determining a reasonable fee (not difficult) for the patent license.
The same could be done with some services and utilities.
This would result in a win-win for all parties involved; the patent holder would receive incentive for the invention, the patent licensee would receive revenue from offering a superior product/service or at lower cost, and especially the consumer who receives a better product and would have more choice of higher quality products.
This would also result in companies doing less "favors" and "ass-kissing" to each other in order to keep license deals.
It seems like this would be the best of both worlds because the patent holder would receive incentive for the invention and t
My bad for being too far ahead of my time :(
He was very prescient with this concluding comment!
Who cares what somebody in the software industry thinks the government ought to be doing with their monopoly on the initiation of violent force?
To the people citing the U.S. constitution here, this isn't about america, it's about pointing guns at people for doing something like what you're doing.
So maybe we should try another approach, something every government likes: taxes. Let's add a tax on patents please. (Maybe copyright too, specially of old (>10 years) works.) A big yearly tax for every patent you own.
It's the only way I can imagine to put some slowdown to the cancerous growth of IP.
But, I have more interesting to troll and patent trolls. Both are fun and worth doing.