by berberich on 8/11/11, 3:37 PM with 73 comments
by mycroftiv on 8/11/11, 5:23 PM
What an insulting and unfounded statement. The arguments against software patents are strong and coherent. Intelligent people can disagree in good faith about the issue, but labeling the anti-software patent position a "completely vacuous cop-out" is unjustified rhetoric. So far as I can see, he doesn't really provide anything other than "math is hard, companies spend money on it" to support a contrary position, and the philosophical point that physical inventions are based on mathematical physics is true but outside the scope of legal reasoning.
The whole piece irritates me, because it is really just repeating the standard arguments for the utility of the patent system in general which all serious participants in the debate already know. The implication is that opponents of software patents are just too ignorant to know the basic issues - which may be true enough of Random Internet Commentators, but is certainly not true of the many experts who are opposed to software patents.
by bediger on 8/11/11, 3:59 PM
For starters, the anti-patent (or even anti-"Intellectual Property") position is not a default mindset, even today. The anti-patent viewpoint is not an "intellectual cheat", if the arguers back up the position with research, facts and examples, which, oddly, this article even gives.
Secondarily, the article even raises the basis for patents in the USA: to promote progress in science and engineering. If the patent system doesn't do that, then what is it's purpose? If the patent system just ends up giving incumbents in the market ways to limit competition,the it is indeed well and truly broken.
by jbooth on 8/11/11, 4:15 PM
What's his solution to Intellectual Ventures, et al? One of the paragraphs I did read compared them to buying up land in the middle of town and setting up a strip mine. Which isn't a favorable comparison and, incidentally, we have zoning laws against that.
by joebadmo on 8/11/11, 5:03 PM
His answer was: "There's absolutely no question at all whatsoever."
Which I was certainly a bit suprised by.
Maybe the truest conclusion I can come to is that, well, because he's a patent lawyer and his livelihood is based on that being true, he has every incentive to believe it.
I think it's worth pointing out that Nilay Patel is a laywer. [EDIT: non-practicing lawyer, never a patent lawyer] It's clear to me when I read his writing on the subject as well as when I hear him talk about it on the podcast that he's so far from my own thinking on this as to be almost incomprehensible.
I've slowly been reading this: http://www.dklevine.com/general/intellectual/against.htm
But it seems to be light on data. Seems to me that theoretical arguments are well established and fairly strong on both sides at this point. Does anyone know of any empirical studies that have been done on the subject? Is that even possible? Any strong natural experiments?
by kenjackson on 8/11/11, 4:38 PM
Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.
You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(http://www.cs.cornell.edu/home.... The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)
The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).
Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.
And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.
by aristidb on 8/11/11, 3:54 PM
Phrases like these infuriate me: "lazy conventional wisdom that the patent system is broken beyond repair". No, it's not lazy. Smart people have devoted a lot of thought to this, and while some arrive at the conclusion that patents are a net benefit, that is far from the only conclusion that thinking people would be able to reach.
by djackson on 8/11/11, 4:08 PM
Apple's patent on "hand scaling velocity" simply gives a mathematical formula for the sentence: "scale at a speed proportional to how fast the fingers are moving."
There is nothing groundbreaking or advanced about the math here, or the idea behind it. Anyone implementing a multi-touch screen is likely to come to discover that a fixed scaling speed sometimes feels sluggish or awkwardly fast, and so that speed should adjust based on user input. And now, without realizing it, they've infringed on Apple's IP and are open to being sued.
by Jach on 8/11/11, 4:18 PM
Nearly every big cause, right or wrong, has its supporters that may have just happened to be on that side, or thought about it seriously once and have since forgotten the details, or indeed have written many essays or books about the subject. I'm sure there are pieces more elegant and detailed than this that argue for abolishing the patent system; characterizing a position by the existence of uninformed supporters seems useless to me since pretty much all positions have those. The sentiment of educating the masses is nice, and I can agree with it, but on the other hand this is why we have skill specialization--I can give some money to someone who has spent lots and lots of time on the issues to continue their fight, I don't have to spend the same amount of time myself.
I know basic algebra looks brilliant to most ordinary people scared of math but I thought "Patents publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history, and it’ll all be free for the taking in several years" particularly amusing after the Apple screenshot. For startups and other companies outside the Valley (where there's a strong sense of sharing), how often do actual game-changing things get patented instead of made into a trade secret?
by hxa7241 on 8/11/11, 4:46 PM
Are you sure it is not just a way of forcing people to waste effort making something different when there is a perfectly good solution ready to use? Is it not better to be building on things rather than around them? and having invention driven primarily by demand not by obstacles?
> Stop offering patent protection and there’s no more required disclosure -- all this stuff stays locked up as trade secrets
Are you sure it is not the likeliness of keeping the secret that dominates here? That is, if you think you can keep an invention secret for longer than a patent term, you will choose that instead of a patent -- since it will give you a longer monopoly. And if you think you cannot keep the secret, patent disclosure does not help anyone else that much, since the secret was going to leak anyway.
The supposed rational is one thing. Whether it actually works that way is another -- and there is no clear proof that it does work.
by georgemcbay on 8/11/11, 7:06 PM
This paragraph from the article points out one of the larger issues I have with patents in high-tech, which is the length of the grant. Even ignoring the fact that simply reading patent claims is a VERY long way away from working code and related infrastructure, the lapse of the patent plus the knowledge from the patent would only be good for helping you to implement Google's algorithm as it existed in 1998(!). Forget about 2018, Google's algorithms (while still built on similar concepts) are known to be very different today or even 4 years ago than they were in 1998.
By granting such a long term to patents you are not just blocking competitors from the core claim, but also any innovations you make while the patent is active, assuming enough of the original invention remains that anything else that uses your non-filed tweaks would still be in violation of the original process.
Result? You could (assuming reading a patent magically allowed you to actually recreate the system) recreate 1998 Google in 2018. Approximate value of that 'knowledge gift to society' IN 2018? $0! You're 2 decades behind where you need to be if you're starting at the original core invention.
BTW, I don't mean for any of this to be a knock on Google, PageRank is simply the example the original article decided to use. Google remains one of the only big software-related corporations whose patent usage/enforcement hasn't yet been destructive to the industry as a whole.
by Symmetry on 8/11/11, 4:24 PM
by cek on 8/11/11, 3:46 PM
by petegrif on 8/11/11, 3:52 PM
by URSpider94 on 8/12/11, 12:02 AM
I have long thought, as the author does, that a ban on "software patents" is extremely short-sighted, given that pretty much any physical object can be represented by equations or software. I really love his example of a beer bottle with a particular neck shape dictated by fluid mechanics equations.
His thoughts on patent trolls are also very welcome -- if we truly believe that intellectual property has value, then we have to allow it to be bought, sold and asserted. But, it does seem reasonable to tie damages to lost revenue or other actual business costs, which non-practicing entities would not have.
by arcdrag on 8/11/11, 4:41 PM
by njharman on 8/11/11, 6:05 PM
Hyperbole much? PageRank, really? The Internet, yes is one of the most important and disruptive inventions. One companies algorithm for sorting search results. A company that's only been around for a decade or so. Search is huge, Google is huge, but they and esp their pagerank agol ain't close to being one of the most important and disruptive inventions in the world.
by xilun0 on 8/11/11, 5:41 PM
Some parts are naive at a rare level, e.g.: "Those rules might actually solve the software patent dilemma for us if we just wait long enough: the gold rush to patent all these fundamental software technologies means that they’ll all be public domain prior art in a few years, and any obvious improvements won’t be patentable. The pendulum swings both ways."
And the long rant about software patent not being explicitly defined in the law and that fact being considered as an important advance in the discussion -- well did anybody did not know that? And even if it was the case, does that make the general discussion about the goodness or badness of patenting software irrelevant in any way?
by serichsen on 8/12/11, 11:29 AM
It does not matter. In any case, to make it work, you need to change either the system or the population. I am quite sure that changing the population is not realistic at all.
Note that this leaves aside the concrete issue, in which I believe that the blame rests mostly on the system, which failed to understand the motivation of people. It does not matter, though (see above).
by chromic on 8/11/11, 6:31 PM
by njharman on 8/11/11, 6:13 PM
by ay on 8/12/11, 1:31 AM
I hesitate to call this an "advanced technology". It's a kind of calculation we'd have done during what amounts to college years in the US.
I stopped reading there.
by monochromatic on 8/11/11, 4:22 PM
by Astrohacker on 8/11/11, 9:56 PM
by neebz on 8/11/11, 4:06 PM
I mean if they just allow only inventors themselves to license their patents and don't allow IV/Lodsys kind of companies to own patents they didn't invent.
Won't that solve half of the problems?
by neilk on 8/11/11, 9:26 PM
by brlewis on 8/11/11, 4:08 PM
by NHQ on 8/11/11, 9:24 PM
by wtracy on 8/11/11, 5:46 PM
by ldar15 on 8/11/11, 8:09 PM
Why is that?
Because Nilay doesn't understand why these patents are obvious.
Which is the whole fucking problem with the patent system Nilay:
People like you saying "Well, these patents look reasonable to me, so why are you people who do this for a living complaining?"