Submitted by Now that these kind of issues are starting to be mentioned by The Economist, NPR, The Guardian, and Forbes, are we at last at the point where the myth that patents universally encourage innovation finally being dispelled?
Now that these kind of issues are starting to be mentioned by The Economist, NPR, The Guardian, and Forbes, are we at last at the point where the myth that patents universally encourage innovation finally being dispelled?
…. that patents “encourage innovation”.
Was it not the fact that IBM allowed clones of the IBM PC that kicked off the PC boom of the ’80s and ’90s? Clones of the IBM PC popped up all over the place.
*Freedom* encourages innovation – not patents.
IBM allowed freedom to flourish, and we all benefitted as a result. Legislators, take note!
Another example is that works of the US government are put into the “public domain”. That also includes some software (which I’ve seen).
Again, no patents there, and we all benefit.
Edited 2011-08-03 00:09 UTC
A totally incorrect analysis of the IBM PC cloning situation. The reality was much closer to the current Android position. It was equivalent to Motorola “allowing” Samsung or HTC to make Android phones.
a) The IBM PC contained no essential IBM designed or manufactured proprietary hardware. All components could be purchased off the shelf.
b) Intel made the CPU.
c) MS owned the OS.
d) The real “cloning” was the clean room reverse engineering of the BIOS by Compaq.
e) Therefore IBM had no legal grounds to sue.
Edited 2011-08-03 05:44 UTC
I might add that there were also dozens of different Apple II clones around using reversed engineered ROMs. Many of them were 100% legal.
apart from the fact that it wasnt IBM that allowed clones, but most components being made by different parties, as others have said, …
…do you really think IBM was happy with this? quite the contrary, in the beginning IBM actually tried to resist it any way they could since it would (and did) affect their business
which was based on selling overpriced and technologically inferior machines to offices who wouldnt realize it (or would even see the “spartanity” of the business machines and application they were presented with, as added values – without fancy graphics employees are less prone to use their work tools for other purposes…) but would trust the brand
and think about this, how much did a 80286 based IBM PC AT cost? and how much for a 68000 based Amiga 2000? but which would you choose if you were a reasonably savvy user expecting to get the most versatile machine for your money in the mid 80’s?
we didnt benefit…
we ended up stuck with the worst processor architecture ever (the X86 ISA was ugly and anachronistic already at that time, beaten wrt performance AND elegance even by contemporary arhcitectures, not to mention those to come in a few years like arm) just made faster with time at the implementation level
but this didnt happen inherently thanks to ibm, rather happened because of pure and simple market demand (people buying/using relatively inexpensive mainstream PC – otherwise one would get something else, like a DEC AlphaStation or an SGI Onyx – asking for more and more computing power to run their games and spreadsheets)
demand that intel and amd could only meet overcoming the difficulties of implementing an ugly and complex isa in an efficient fashion – at which point it was only pragmatic and rational to RISCify (decompose and regularize) the pipeline and then to apply tricks (eg pipelining, superscarity, out of order execution) that RISC architectures had been successfuly employing (while x86 and CISCs in general as they were, weren’t even really fit for them) that way being way more innovative, for their times at least…
with “freedom” and multivendor-ness comes the need to let everybody go along well with everyone else – hence standards, but standards are “lowest common denominators” more often than not
thus, freedom actually stifles innovation more often than not – in some cases on a spectacular level
and then?
since “some software” is given away by its author as public domain then ALL software (including programs whose authors rightly want to capitalise on ) should be public domain?
The PC was deliberately hobbled by IBM engineers because they were only interested in big iron.
Unfortunately for the engineers the new-fangled spreadsheet software created a booming market for the boring beige boxes.
Asking whether patents encourage innovation is probably the wrong question. It might be more fair to ask if having patents (at least in a limited form) prevents others from ripping off your ideas.
For example, if I create a new video codec that is able to compress DVD-quality movies into a file that’s less than 50MB, shouldn’t I be able to ‘own’ that codec for at least a limited time, without worrying about whether every Tom, Dick, and Harry will reverse engineer it and release/profit from their own apps supporting my codec without giving me anything tangible back in return?
Although I would agree that software patents are WAAAAAAAAAAY too broad, I’m not convinced they should be done away with entirely. People who think they should be seem to be of the mindset anybody who wants to write software and profit from it is a seal-clubbing bastard.
Sure, you should own your codec at least the parts that doesn’t contain some arbitrary combination of if, then else statements that somebody else claims to own. As you likely have no idea what they are until some letter telling you about it you have no idea how much money you and your investors can make on your product.
This means that investors are less likely to invest. With no money inventors are less likely to succed in inventing something new. And what do you do if you find out that sombody finds that you infringe on some of their patents and refuses to licens it to you.
Another problem is that good ideas in software often is quite simple to grasp or explain. The really hard thing is to implement them, so even if you license a software patent you may need to do a lot of work yourself, even though you paid for using the idea.
Well, that was my whole point… if they weren’t so overly broad, it would be a lot harder to infringe somebody else’s patent on accident. In other words, you’d kind of have to go out of your way to do it. Like, ‘I have reverse engineered this person’s codec/file format, and now I am adding support for it in my app …’
With the current system it is more likely that you will find no investors because of the threat of litigation.
While patents does increase the likelihood of success (financially speaking) they also increases the likelihood of failure (again financially speaking).
Patents tends to favor the incumbent player over the newcomer, and can freeze innovation in an industry completely.
This means that patents favors an industry with a few large players. No patents favors an industry with many small players. Take your pick.
I don’t think that is the case. The hard part about ideas, whether in software or other fields, is conceiving them. Once you thought of a new paradigm, then explaining, implementing or copying it (if you’re exposed to the idea) is relatively simple, give or take.
The problems with patents now-days, IMO, are:
1. Where to draw the line between trivial ideas (Amazon’s one click purchase patent comes to mind) which shouldn’t be patentable, and real innovative concepts/processes which should be protectable.
2. The extent of protection granted by current laws over “IP” in general (controversial term).
3. The fact that these days, patents are collected, traded and mostly used as bargaining chips or simply as a way to hurt competitors, regardless if the patent owners have real products which implement the patented system (esp. together with point 1 above)
And, as a result,
4. The fact that at the current patents landscape, it’s practically impossible to develop something new without stepping over existing patents (see previous points), which will only reveal themselves after the developer/s feel they’ve established a profitable business, and even if the product was developed independently.
And this makes any development which isn’t backed by a massive financial entity, an extremely risky business.
It’s point 4 which really sucks and really hurts innovation by non corporate entities (read: small businesses).
PS.
This new DVDto50M codec? probably infringes dozens of patents, and probably much more…
Edited 2011-08-03 02:50 UTC
Tell that to a civil or mechanical engineer and they will laugh in your face.
Many things are exceptionally easy to conceive yet essentially impossible to implement (eg glass submarines). Mechanical clocks and watches have had very little increase in accuracy in the last 100 years despite thousands of highly creative patents by absolutely brilliant engineers and watchmakers.
In the case of bridges and other large structures the trickiest part is usually not designing the structure but working out the best way to build it.
The Sydney Opera House is a worthy case study into the sometimes extreme difficulties of converting a very simple design into a functional building. [Basically it proved to be a leaky, massively over-budget construction nightmare with appalling acoustics.]
In that case, code+binary copyright, which protects the implementation, should be enough, right ?
I think the original question was the correct one. Patents were not created to give creators a limited monopoly to be “fair” they were implemented to encourage innovation. When looked at from a wide view even if the monopoly granted was fair but hurt innovation overall (the encouragement from having the monopoly is less than the hindrance on all other innovators) it would be bad policy to implement it.
It wouldn’t hurt innovation overall, because other innovators would be busy innovating, and not copying your stuff
(Again, we’re assuming that the limited monopoly was fair, so others wouldn’t likely accidentally ‘step on’ your patent.)
I am glad there is some form of a public debate going on. As a software developer, I say we should have the right to write our own implementations of our code without knowing or caring whether someone else may have had the same idea.
Exclusive patents just cannot scale in a market where thousands of developers may have the same idea. There’s no reason to deny the second, third, and fourth developers the fruits of his efforts. The risk of inadvertent infringement is just too great, and the costs of litigation are too high, and the barriers to entry are just too low to justify any software patents at all.
How is this any different than the patents on any subject? That is the whole point. There is a very good reason to “deny” the 2nd, 3rd, … fruits of his or her efforts: namely society would be better served if they were working on something actually innovative.
The whole point of issuing patents is to promote the useful arts. To prevent the wasted human effort reproducing the work of others who would otherwise be working in secrecy.
I may buy the economic argument that the US patent system applied to software provides no benefit because the production of software is not a useful art worth promoting. It is more like being a line cook in a restaurant cranking out “solutions” that differ in quality and kind from that produced in a restaurant down the street only by the arbitrary “taste” of its designers or consuemrs than an engineer crafting innovative solutions to real problems facing society.
Not2Sure,
“There is a very good reason to deny the 2nd, 3rd, … fruits of his or her efforts: namely society would be better served if they were working on something actually innovative.”
Why not let the public decide which products are most innovative in a free market? Seriously, what is wrong with that?
“The whole point of issuing patents is to promote the useful arts. To prevent the wasted human effort reproducing the work of others who would otherwise be working in secrecy.”
I highly recommend that you read the NPR source from the article:
“Brunner says software patents on his own work don’t even make sense to him. ‘I can’t tell you for the hell of it what they’re actually supposed to do. The company said we have to do a patent on this. … Personally, when I look at them, I’m not proud at all. It’s just like mungo mumbo jumbo that nobody understands and makes no sense from an engineering standpoint whatsoever.'”
Well you see this group of people got together and created a Constitution and in their view (of Madison and other Framers) the principal reason for doing so was the protection of the right to own and acquire private property which is basically a moral assumption that a person should be able to reap and profit from the fruits of his or her labor that predates any system of government. However, even these property rights freaks recognized the value and importance of the progress of science and the useful arts to society. So, in order to promote their progress (and to combat the great number of varied powers found in State constitutions doing the same but with different terms that would make conducting business in the new nation impossible, e.g., different parties in different states holding the same patent) they reserved to Congress the right to issue patent monopolies (something of high value) in exchange for making something of high value (hidden knowledge, craft secrets) in turn less valuable, in my interpretation.
Consumers are generally (in the US in particular) nonrational and “pick” winners based on factors utterly unrelated to the actual qualities of a product that would serve to promote the state of the art.
Again, if software engineering is more like cooking, then sure let the restaurant that serves up the “best” food win and invalidate all software method patents (note: restaurants do not generally win over their competition based on the quality of the food and engineers almost universally seem unable to grasp this basic concept). However, if software incorporates or constitutes the creation of real intellectual property with actual value to society, then you should think deeply about invalidating its value with overgeneralizations and hyperbole.
Also, I fail to see how this “argument” is particular to software patents which is the subject at hand. Are you saying that all patent grants in any domain should be invalid because they hinder the “free market”? You should set to work immediately on a Constitutional amendment.
That article/programming is fluff, dramatic window dressing around complex issues watered down to entertain a certain demographic of radio listeners. I highly recommend you consider looking for more indepth resources on the issue. If you are arguing for reform of the language employed in patents to make it more accessible to those who would use it, then you are not alone. The USPTO has such reforms in its strategic plan.
You seem to favor the “simultaneous invention” theory of innovation and as a critique of patent exclusivity. You might find the justification of “patent racing” interesting which I was delighted to find referenced. I find the history in this paper a little “light” (unsurprising as its written by a patent lawyer) but I think hopefully you will find it throught-provoking: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856610
Edited 2011-08-03 10:24 UTC
Not2Sure,
I already understand the historical role and motivations for patents.
“Consumers are generally (in the US in particular) nonrational and ‘pick’ winners based on factors utterly unrelated to the actual qualities of a product that would serve to promote the state of the art.”
What’s with your claim that US consumers are irrational? In any case, so what? Why would one even presume that the government is entitled to pick the winners on behalf of nonrational consumers? It’s our right.
“Again, if software engineering is more like cooking…”
Are you either a cook or a software engineer?? If not, why do you even presume to know what’s best for us?
“However, if software incorporates or constitutes the creation of real intellectual property with actual value to society, then you should think deeply about invalidating its value with overgeneralizations and hyperbole.”
“Intellectual property” is *itself* a hyperbole. The USPTO has no place in telling us software developers what lines of code we can and cannot have in our programs. That’s a form of creative oppression and if you were a developer you’d understand that. It’s up to the market to assign value, don’t make it more complicated than it is!!
“Also, I fail to see how this ‘argument’ is particular to software patents which is the subject at hand. Are you saying that all patent grants in any domain should be invalid because they hinder the ‘free market’? You should set to work immediately on a Constitutional amendment.”
We’ve already been over this and we’ve all given you dozens of reasons software should not be patented. If you want to extend the logic to say patents need to be invalidated for other domains as well, then go right ahead. But those are your claims, as a software developer I don’t presume to know what’s best for other disciplines.
“That article/programming is fluff, dramatic window dressing around complex issues watered down to entertain a certain demographic of radio listeners.”
The language may be fluffed down, but the problems therein are indeed very real and I for one am very glad that they are getting a bit of public attention.
“You seem to favor the ‘simultaneous invention’ theory of innovation and as a critique of patent exclusivity.”
Actually my view is stronger than that, I’d say independent invention is a major problem with patents whether or not they were simultaneous. Multiple developers working on the same problems will naturally overlap each others work since “good developers think alike”. There more developers there are, the more likely they are to arrive at common solutions (think how quickly collisions start to occur with “the birthday paradox”). There are only so many logical/optimal ways to solve software problems, after those have been enumerated and patented, the monopolies effectively block other developers from entering the market.
“You might find the justification of ‘patent racing’ interesting which I was delighted to find referenced.”
I thank you for the reference, but I don’t think it says anything in practical terms addressing the criticisms against software patents.
Then you should amend the Constitution. Because it’s “your” social contract. Good luck with that.
Yes, I create software and prepare food, on a daily basis even! Not sure why that is relevant.
And, because the arguments for the protection of intellectual property are sound and the arguments against are specious at best and the US is a nation of laws.
This is the same opinion held by a majority of teenagers just entering university and by people who have never created anything of value. You’re in excellent company.
Umm, you have yet to list a single (other than patents are hard to read), let alone a dozen reasons software methods should not be patented.
As a software developer, I’m pretty sure you don’t know what’s best even for your own discipline.
This is exactly the simultaneous invention view, which is why the first-to-invent/first-to-file dichotomy between the US and the EU is such an important distinction.
If one can follow your line of reasoning, you are basically arguing that there is nothing innovative worth patenting in software because everything is obvious to practitioners. That is one view and it is the same view espoused above (producing software is like producing food in a restaurant, ie not patentable).
It is consistent, but I don’t think you will find many adherents.
You obviously didn’t read it. It adequately summarizes all of the criticisms of justifications for patent theory and proposes the beginnings of a different justification, e.g., the “racing” effect stimulates competition and innovation. Interesting idea.
Not2Sure,
“Then you should amend the Constitution. Because it’s ‘your’ social contract. Good luck with that.”
What even gives you even the slightest impression that I want to amend the constitution? There’s no reason to, software patents are being accepted through case law set by court precedent only, not because the constitution or congress have said anything on the matter.
“And, because the arguments for the protection of intellectual property are sound and the arguments against are specious at best and the US is a nation of laws.”
Software developers already have copyright to do this. No one has yet to bring one sound argument that software developers need software patents to compete in light of the fact that the overwhelming majority of us actually in the field have never found the need or desire to patent our implementations.
“This is the same opinion held by a majority of teenagers just entering university and by people who have never created anything of value. You’re in excellent company.”
You can attack me personally if that’s your best argument, but the fact is the majority of software developers feel that the monopolistic rewards for one entity are far outweighed by the unavoidable negatives which are financial overhead, legal uncertainty, litigation, artificial software restrictions, etc.
“Umm, you have yet to list a single (other than patents are hard to read), let alone a dozen reasons software methods should not be patented.”
Are you denying the anti-patent discussions in all the recent patent articles?
“As a software developer, I’m pretty sure you don’t know what’s best even for your own discipline.”
Spoken like a true dictator.
“If one can follow your line of reasoning, you are basically arguing that there is nothing innovative worth patenting in software because everything is obvious to practitioners.”
That may be your take, but that’s not what I’ve been saying. I’m saying software patterns should not be patented because the chance of collisions amongst independent developers is too great, particularly when the filers deliberately try to include all possible variations of a method to preclude the possibility of avoiding the patent. Granting exclusive ownership in a field where thousands of developers are already competing retards innovative implementations rather than promoting them.
“You obviously didn’t read it. It adequately summarizes all of the criticisms of justifications for patent theory and proposes the beginnings of a different justification, e.g., the “racing” effect stimulates competition and innovation. Interesting idea.”
It was over a hundred pages, if you have a specific point to make your going to have to quote it directly.
I searched for the section on patent racing, and as far as I could tell it didn’t propose any solutions to software patents. It was rather geared towards justifying the patent system in general, saying that the rush to patent every conceivable idea before the competition does is beneficial.
Most people already see the faults with this view, but I guess I need to spell it out:
A patent race is not necessarily a productive use of resources. A patent race only benefits those who use patents to go after other companies. Developers who aren’t interested in specializing in courtroom litigation will have to divert resources to fund the patent race for no benefit what-so-ever. They could always sell their patents to an “Intellectual Ventures”, but clearly the resulting large scale litigation will be very unproductive for everyone involved.
A patent race is not necessarily a better motivator than filling customer demand in the traditional free market.
A patent race on a huge scale will have a whole lot more losers than winners. Unlike a normal race where competitors can try again, these racers may be barred from the market. These competitors would have otherwise been willing and able to bring competitive products to the consumer market without patents.
A patent race encourages patent filing, but not product development. This leads to business models financed through litigation rather than product development. Ultimately when too many players are trying to survive by taxing the work of others, the economy becomes top heavy and we all suffer. This is especially true when you have a patent system which encourages all companies to behave this way.
A patent race gives exclusive rights to one party, who’s product may not be as good for consumers as would be competitors.
Newcomers are severely disadvantaged in a patent race against incumbents. Newcomers don’t have a chance to compete on merit because of the portfolio imbalance.
A patent race grants all the reward to the selected winners, but all the other thousands of developers who were racing towards the same conclusions basically loose their investment and are forced to license the same technology from their competitors.
Edited 2011-08-04 02:44 UTC
I did not know this, but peter detkin is given credit for creating the term “patent troll” in 1999. He then co-founded Intellectual Ventures, to become one.
“The fact is the bulk of our patents, the bulk of our revenue is from people … [who] were using it before we bought it, they were using it after we bought it, but we provided an efficient way for them to get access to the invention rights.”
This highlights one of the biggest problems with these patents – they’re being used to harass other developers who are infringing inadvertently. Since Intellectual Ventures doesn’t produce any products, and is a 100% licensing/litigation company it is a rather safe assumption to say their work was never “copied”, they are suing developers who came up with the same idea independently in the course of business.
Patents entitle companies like Intellectual Ventures to profit off of the work of others, they offer no public benefit what-so-ever. It’s absurd that they’re entitled to compensation over ideas which they never even implemented.
Ok, the thread is about patents, but I also find that the duration of copyright (for software) is excessive.
Vastly so.
I’m in New Zealand, and if the table shown in this link is to be believed, the duration of copyright on software is “the life of the author plus 50 years”.
http://en.wikipedia.org/wiki/List_of_countries%27_copyright_len…
Now, am I the only one who finds that *ridiculously excessive* for software?
Let me put forward a “what if” scenario.
What if the term of copyright on software were limited to (say) thirty years after its first public release?
It would then pass into the “public domain”.
Let’s take (say) Windows 95 as an example.
It was released in Aug 1995, so it is almost 16 years old now (and unsupported by MS).
If the copyright on that were to expire in 14 years time, and it were released to the public domain then, does *anyone* really believe that MS would suffer in any material way? I don’t.
I believe that if the patent laws are to be looked at (with a view to completely overhauling them), then the copyright law should *also* be looked at at the same time. “Life plus 50 years” for software is ridiculous.
obsidian,
“Ok, the thread is about patents, but I also find that the duration of copyright (for software) is excessive.
Vastly so.”
“I believe that if the patent laws are to be looked at (with a view to completely overhauling them), then the copyright law should *also* be looked at at the same time. “Life plus 50 years” for software is ridiculous.”
It may be that copyright terms are excessive (particularly due to continuous upward revisions, original colonial state copyrights were on the order of 7 years), but it’s important to understand that the motivation for prohibiting software patents is completely different from the motivation to shorten copyright terms.
They are independent discussions in my opinion. Copyrights don’t oppress developers like software patents do.
What worries me is the fact that very large corporations have invested billions and billions into patents and regard them as a valuable asset. On the other hand the same companies regularly bribe (lobby) politicians to do their biding and pass laws in their favor. So there’s no way in hell these companies would let anything happen to their precious portfolio and lose billions in the process.
You are probably right. The small developer doesn’t have anywhere near enough financial/lobbying power to be heard in the halls of power.
The only hope is that other large corporations will suffer enough that they demand change. Unfortunately, they’ll probably come up with a solution (like large, expensive subscription patent pools) that the little guy won’t have access to, and they will consider the problem solved. (Large corporations are more worried about the uncertainty than the actual money.)
(Of course, all of this is completely contrary to the original intent of patents, and of any sense of reason.)
From one of the articles:
A new paper on “The Myth of the Sole Inventor” by Mark Lemley, a professor of law at Stanford, reinforces Mr Sanchez’s point.
[S]urveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often “in the air,” or result from changes in market demand or the availability of new or cheaper starting materials. …
The result is a real problem for classic theories of patent law. If we are supposed to be encouraging only inventions that others in the field couldn^aEURTMt have made, we should be paying a lot more attention than we currently do to simultaneous invention. We should be issuing very few patents ^aEUR“ surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention.
http://www.economist.com/blogs/democracyinamerica/2011/08/intellect…
Edited 2011-08-03 09:03 UTC
For me the question is clear: Do patents encourage innovation?
The answer IMO would be dependent on the rareness of the invention compared to the pool of inventors. As such when the population increases (anyone can be an inventor) the innovativeness bar of what is patentable should increase as well. A larger pool will more quickly yield 2 of the same result than a smaller pool. At a certain population the level of innovation required would be so great to justify patenting that having a patent system at all would be a hindrance instead of a benefit.
Whether the patent system was justified before I would speculate that with the population today we are beyond the point where any patent system continues to be a benefit. That is of course my personal suspicion and I have no statistics to back it up. It would be nice if someone did a study on this, however, the study would almost assuredly include a large amount of extrapolation which would increase the uncertainty of the results.
…that it’s not the patent itself that’s bad, it’s what people do with them. Like all things, patents are neither good nor bad, these are attributes of mankind. With or without patents, groups of people will still find a way to screw each other over. Since this is a psychological problem, then it should be solved in a behavior-confined manner. For instance, the real problems is that patent trolls buy up patents in order to build a portfolio for offensive & defensive purposes. The solution seems rather obvious. Disallow the transfer of patents. No patent selling, no patent giving. The moment a patent holder does something that would have the same effect as the transfer of ownership, then everyone owns the patent (public domain). In this way, the creator of the innovation is still protected, while patent trolling is hindered. Also, patents need to be narrow in scope. Overly generalized or vague patents should be rejected for not being specific enough. Prior art needs to be vetted before the patent is granted. Software experts, who work solely for the patent office, need to be in charge of these reviews.