"Our preferred policy solution is to abolish patents entirely"
February 6, 2013 7:28 AM Subscribe
"The historical and international evidence suggests that while weak patent systems may mildly increase innovation with limited side effects, strong patent systems retard innovation with many negative side effects." "innovations leading to the creation of a new industry .. is seldom, if ever, born out of patent protection and is instead the fruit of a competitive environment." — Boldrin and Levine. The Case Against Patents. J. Economic Perspectives. (huffpo)
I like this argument very much, and I'm going to copy it and use it myself.
posted by Segundus at 7:37 AM on February 6, 2013 [10 favorites]
posted by Segundus at 7:37 AM on February 6, 2013 [10 favorites]
I like this argument very much, and I'm going to copy it and use it myself.
posted by molecicco at 7:39 AM on February 6, 2013 [23 favorites]
posted by molecicco at 7:39 AM on February 6, 2013 [23 favorites]
read that title as 'parents' and was expecting a modest proposal-esque solution from middle schoolers.
posted by leotrotsky at 7:39 AM on February 6, 2013 [14 favorites]
posted by leotrotsky at 7:39 AM on February 6, 2013 [14 favorites]
on topic: right but good luck getting any traction against vested interests with millions of dollars to spend. You'd have to square off against tech, pharma, and automotive simultaneously. In any case, China's already de facto implementing the proposed solution. We'll find out if it works when they start pacing us innovation-wise.
posted by leotrotsky at 7:44 AM on February 6, 2013 [1 favorite]
posted by leotrotsky at 7:44 AM on February 6, 2013 [1 favorite]
This is timely, in light of the patent troll going after podcasts.
posted by drezdn at 7:49 AM on February 6, 2013 [6 favorites]
posted by drezdn at 7:49 AM on February 6, 2013 [6 favorites]
"Why use band-aids to staunch a major wound? Economists fought for decades -- ultimately with considerable success -- to reduce restrictions on international trade. A similar approach, albeit less slow, should be adopted to phase out patents."
posted by jeffburdges at 7:52 AM on February 6, 2013 [1 favorite]
posted by jeffburdges at 7:52 AM on February 6, 2013 [1 favorite]
In a different era, at the start of Silicon Valley...
This is a tough area to get the counter-factual reasoning correct.
posted by Llama-Lime at 7:53 AM on February 6, 2013 [3 favorites]
What we never anticipated, I guess, was a lot of other participants were going to enter the business later on. So, at Fairchild we tended to patent relatively few things, typically the ones that we thought we could police most easily and were the most difficult to get around, you know, the more fundamental things. But, I was responsible for a lot of those decisions. I remember one in particular that, in retrospect, is kind of funny. In the early days of the integrated circuit, Bob Norman, one of the people who were involved there, suggested the idea of semiconductor memory... the whole idea of how semiconductorflip- flops could be used as a memory structure, and I decided it was so economically ridiculous, it didn't make any sense to file a patent on it.If Fairchild Semiconductor actually had patented memory, would Intel have been able to get off the ground without a portfolio to cross license? Even back then patents were primarily to cross-license, and even though such cross-licensing deals would presumably keep out startups, there was no shortage of startups in that era.
You recognize that a few years later, semiconductor memory was the basis of...
Of Intel. --Gordon Moore, Fairchild Chronicles
This is a tough area to get the counter-factual reasoning correct.
posted by Llama-Lime at 7:53 AM on February 6, 2013 [3 favorites]
I feel like the ultra-libertarian philosophies have spun so far out of control, they've infected even some of our more intelligent minds.
Listen... patent laws, like child labor laws, like financial regulation, like civil rights measures, and like a lot of other things weren't created in some sort of vacuum, or foisted upon humans by the devil himself. There were reasons all of these things were implemented at some point. There were large amounts of people who were inconvenienced or hurt before these things were put into place.
Unfortunately, with this patent deal, like everything else I mentioned above, I fear that people are going to throw the baby out with the bath water and we have to learn the hard way... again... why someone implemented these "hinderences". Yes, patent laws and frivilous patent litigation are causing headaches, but let's fix those headaches by applying some sort of treatment rather than cutting off the head, entirely.
posted by Bathtub Bobsled at 7:55 AM on February 6, 2013 [24 favorites]
Listen... patent laws, like child labor laws, like financial regulation, like civil rights measures, and like a lot of other things weren't created in some sort of vacuum, or foisted upon humans by the devil himself. There were reasons all of these things were implemented at some point. There were large amounts of people who were inconvenienced or hurt before these things were put into place.
Unfortunately, with this patent deal, like everything else I mentioned above, I fear that people are going to throw the baby out with the bath water and we have to learn the hard way... again... why someone implemented these "hinderences". Yes, patent laws and frivilous patent litigation are causing headaches, but let's fix those headaches by applying some sort of treatment rather than cutting off the head, entirely.
posted by Bathtub Bobsled at 7:55 AM on February 6, 2013 [24 favorites]
I initially read the title as saying they proposed to abolish parents entirely. I'm a little disappointed now...
posted by The Ardship of Cambry at 7:58 AM on February 6, 2013
posted by The Ardship of Cambry at 7:58 AM on February 6, 2013
It is debatable that there was ever a baby in this bath to begin with.
posted by qxntpqbbbqxl at 8:00 AM on February 6, 2013 [15 favorites]
posted by qxntpqbbbqxl at 8:00 AM on February 6, 2013 [15 favorites]
China's already de facto implementing the proposed solution. We'll find out if it works when they start pacing us innovation-wise.
See, however, this.
posted by IndigoJones at 8:02 AM on February 6, 2013 [3 favorites]
See, however, this.
posted by IndigoJones at 8:02 AM on February 6, 2013 [3 favorites]
Why use band-aids to staunch a major wound?...
Those are BAND-AID® brand adhesive bandages, thank you very much.
posted by caddis at 8:06 AM on February 6, 2013 [6 favorites]
Those are BAND-AID® brand adhesive bandages, thank you very much.
posted by caddis at 8:06 AM on February 6, 2013 [6 favorites]
leotrotsky - I read the title as "patients" and got to page 2 before it stopped making sense. (time for new glasses)
posted by forward1 at 8:15 AM on February 6, 2013
posted by forward1 at 8:15 AM on February 6, 2013
Boldrin & Levine's view is by no means universally accepted. For example, see the Opinion of European Union Economic and Social Committee, COM (1995) 661 final (July 11, 1996), (recognizing that "Europe is lagging further and further behind the USA," as evidenced by the stark contrast in number of biotech patents, firms, and products; proposing strong patent protection as in the United States to solve "Europe's backwardness").
Be wary of whole-heartedly believing the conclusions of economists just because they happen to confirm your own ideas.
In any case, China's already de facto implementing the proposed solution. We'll find out if it works when they start pacing us innovation-wise.
I'm not sure what you mean. China has generally been reforming its whole IP regime (patent, trademark, and copyright) to be more like the US, Europe, and Japan's, and Chinese companies are starting to invest more heavily in patents abroad. It's certainly much harder to enforce IP rights in China than in many other countries, but it's not a free-for-all, and it's becoming less so.
posted by jedicus at 8:16 AM on February 6, 2013 [2 favorites]
Be wary of whole-heartedly believing the conclusions of economists just because they happen to confirm your own ideas.
In any case, China's already de facto implementing the proposed solution. We'll find out if it works when they start pacing us innovation-wise.
I'm not sure what you mean. China has generally been reforming its whole IP regime (patent, trademark, and copyright) to be more like the US, Europe, and Japan's, and Chinese companies are starting to invest more heavily in patents abroad. It's certainly much harder to enforce IP rights in China than in many other countries, but it's not a free-for-all, and it's becoming less so.
posted by jedicus at 8:16 AM on February 6, 2013 [2 favorites]
Yes, the article finds that no baby ever existed, ala "After six decades of further study since Machlup’s testimony in 1958 has failed to find evidence that patents promote the common good."
Also, one should remember that (a) ancient monarchies granted monopolies all the time, much like they granted corporate charters, and (b) copyright evolved from laws censoring the press.
posted by jeffburdges at 8:16 AM on February 6, 2013 [1 favorite]
Also, one should remember that (a) ancient monarchies granted monopolies all the time, much like they granted corporate charters, and (b) copyright evolved from laws censoring the press.
posted by jeffburdges at 8:16 AM on February 6, 2013 [1 favorite]
Tech
If have thought they'd be glad to see it go. Sure you can use patents to screw over the opposition, but they'll screw you right back and you end up in the current situation where everyone is screwing everyone and spending massively on litigation and defensive patents just to stay in the game.
It keeps the small players from challenging any of the big established ones, I guess.
posted by Artw at 8:31 AM on February 6, 2013 [1 favorite]
If have thought they'd be glad to see it go. Sure you can use patents to screw over the opposition, but they'll screw you right back and you end up in the current situation where everyone is screwing everyone and spending massively on litigation and defensive patents just to stay in the game.
It keeps the small players from challenging any of the big established ones, I guess.
posted by Artw at 8:31 AM on February 6, 2013 [1 favorite]
Reason magazine published a pretty good article summarizing Boldrin and Levine's "perfectly competitive innovation" theory a while back, along with some interviews with other economists on why they are skeptical.
posted by dsfan at 8:32 AM on February 6, 2013 [3 favorites]
posted by dsfan at 8:32 AM on February 6, 2013 [3 favorites]
And just to point out a basic reasoning error in the paper:
They also only reference its issue date of 1999 ("Purchases were already being made over the Internet in 1999") rather than its filing date in 1997, which is the relevant date for obviousness purposes. Purchases were also being made over the internet in 1997, of course, but it's a basic patent law error that makes me question whether they really understand the system they are critiquing. I'm going to assume ignorance rather than an intentional distortion of the facts, though.
I don't want to debate the merits of the one-click patent. I'm only pointing out some troubling errors on the part of the authors that I noticed just a couple of minutes into skimming the article.
posted by jedicus at 8:36 AM on February 6, 2013 [2 favorites]
applying the idea of taking a single action to making a purchase is obvious to anybody who has ever used a soft drink machine.But of course using a soft drink machine requires two actions: entering money and selecting a soft drink. The one-click patent eliminates the first step. It would be like a soft drink machine that allowed you to swipe a credit card once and from then on it would recognize you biometrically when you walked up to the machine.
They also only reference its issue date of 1999 ("Purchases were already being made over the Internet in 1999") rather than its filing date in 1997, which is the relevant date for obviousness purposes. Purchases were also being made over the internet in 1997, of course, but it's a basic patent law error that makes me question whether they really understand the system they are critiquing. I'm going to assume ignorance rather than an intentional distortion of the facts, though.
I don't want to debate the merits of the one-click patent. I'm only pointing out some troubling errors on the part of the authors that I noticed just a couple of minutes into skimming the article.
posted by jedicus at 8:36 AM on February 6, 2013 [2 favorites]
Generally speaking, and especially nowadays in the US, you do not arrive at a happy medium by starting your negotiation at the happy medium.
posted by aramaic at 8:48 AM on February 6, 2013 [3 favorites]
posted by aramaic at 8:48 AM on February 6, 2013 [3 favorites]
If you're really inclined to tilt at windmills, you'd do better to take off after copyright. How about limiting copyright to 20 years, with no renewal?
posted by Chocolate Pickle at 8:50 AM on February 6, 2013 [3 favorites]
posted by Chocolate Pickle at 8:50 AM on February 6, 2013 [3 favorites]
Yes, patent laws and frivilous patent litigation are causing headaches, but let's fix those headaches by applying some sort of treatment rather than cutting off the head, entirely.
That's not the head. It's a tumor.
posted by ChurchHatesTucker at 8:52 AM on February 6, 2013 [1 favorite]
That's not the head. It's a tumor.
posted by ChurchHatesTucker at 8:52 AM on February 6, 2013 [1 favorite]
It would be like a soft drink machine that allowed you to swipe a credit card once and from then on it would recognize you biometrically when you walked up to the machine.
So, more like a bartender who recognises you and puts it on your tab.
In that "web shopping cart" patent that was in the news the other day, old-time grocery stores where the clerk would write down your order and then get your stuff off the shelves should have counted as prior art.
Remember when the big controversy was whether patents on clever algorithms such as RSA should be allowed?
posted by sfenders at 9:01 AM on February 6, 2013 [1 favorite]
So, more like a bartender who recognises you and puts it on your tab.
In that "web shopping cart" patent that was in the news the other day, old-time grocery stores where the clerk would write down your order and then get your stuff off the shelves should have counted as prior art.
Remember when the big controversy was whether patents on clever algorithms such as RSA should be allowed?
posted by sfenders at 9:01 AM on February 6, 2013 [1 favorite]
I re-read patents as "patients" both times in the title and post description, then did it again upon re-reading, and came to the conclusion that this was some sort of Swiftian satire of the U.S. hospital industry.
Then I realized it was about patent law, which has become a Swiftian satire of itself.
posted by Shepherd at 9:06 AM on February 6, 2013 [2 favorites]
Then I realized it was about patent law, which has become a Swiftian satire of itself.
posted by Shepherd at 9:06 AM on February 6, 2013 [2 favorites]
Given that we had a period where everyone protected their IP with trade secrets (the high middle ages) and it wasn't exactly innovation-a-go-go makes me question their conclusion.
Also, look at their proposal for pharmaceutical testing. What they're proposing is slashing things back to where we're only doing acute safety testing and then turning compounds loose in the marketplace and letting the sick pay (albeit only economic cost - such a deal) for the privileged of doing poorly documented, free-form experimental design efficacy testing. This is the magnetic copper healing bracelet model!
There are plenty of things you can point out about the drug discovery process that are inefficient and broken. None of those things are that big pharma isn't more like the "herbal Viagra" spammers of the previous decade.
posted by Kid Charlemagne at 9:08 AM on February 6, 2013 [5 favorites]
Also, look at their proposal for pharmaceutical testing. What they're proposing is slashing things back to where we're only doing acute safety testing and then turning compounds loose in the marketplace and letting the sick pay (albeit only economic cost - such a deal) for the privileged of doing poorly documented, free-form experimental design efficacy testing. This is the magnetic copper healing bracelet model!
There are plenty of things you can point out about the drug discovery process that are inefficient and broken. None of those things are that big pharma isn't more like the "herbal Viagra" spammers of the previous decade.
posted by Kid Charlemagne at 9:08 AM on February 6, 2013 [5 favorites]
I think jedicus's comments are seriously understated, there are probably several economic phd thesis's just on how one would calculate the money tied up in different industries patent portfolios let alone the effect of wiping out even a segment. I did not read in detail but expect there was little suggestion of alternatives.
Many parts of the Patent system are seriously broken, note some wag patenting a child's swing. Software and process patents are basically evil and wrong, but for example the line between an embedded system that controls a factory with levers and belts and a key bit of software in the system that is totally novel is just a fuzzy grey line.
It would also free up legions of intellectual property lawyers, what would we do to keep them out of causing more trouble in other areas?
posted by sammyo at 9:09 AM on February 6, 2013
Many parts of the Patent system are seriously broken, note some wag patenting a child's swing. Software and process patents are basically evil and wrong, but for example the line between an embedded system that controls a factory with levers and belts and a key bit of software in the system that is totally novel is just a fuzzy grey line.
It would also free up legions of intellectual property lawyers, what would we do to keep them out of causing more trouble in other areas?
posted by sammyo at 9:09 AM on February 6, 2013
It would also free up legions of intellectual property lawyers, what would we do to keep them out of causing more trouble in other areas?
I guess by then it would be too late to patent some kind of walk-in meatgrinder dosguessed as an employment office.
posted by Artw at 9:12 AM on February 6, 2013 [3 favorites]
I guess by then it would be too late to patent some kind of walk-in meatgrinder dosguessed as an employment office.
posted by Artw at 9:12 AM on February 6, 2013 [3 favorites]
There is an easy modification that would fix things: if you can only keep a patent you are actively using. So if Big Pharma invents the cure to the common cold and sells it, they get a fair period of exclusivity to make the investment worthwhile. If, however, they just sit on it and use it to prevent others from making the cure, the patent should expire quickly.
It is the unseen and not manufactured portfolios of patents that slow innovation.
Then ditch software patents entirely, because wtf.
posted by BeeDo at 9:12 AM on February 6, 2013 [5 favorites]
It is the unseen and not manufactured portfolios of patents that slow innovation.
Then ditch software patents entirely, because wtf.
posted by BeeDo at 9:12 AM on February 6, 2013 [5 favorites]
I guess by then it would be too late to patent some kind of walk-in meatgrinder dosguessed as an employment office.
Prior art.
posted by steambadger at 9:23 AM on February 6, 2013 [1 favorite]
Prior art.
posted by steambadger at 9:23 AM on February 6, 2013 [1 favorite]
Software patents are stupid for sure. Design patents mostly dumb. Invention patents not so dumb. The fact that it's a moving target. Used to be first one with the idea. Now is first to market. I say get rid of patents and copyrights. Crowdsource everything and go back to the patronage system.
Coke makes plenty while there are dozens of other colas out there that I can't distinguish from Coke. Apple will still make a mint even if they let everyone copy everything. Who wants a copy?
posted by cjorgensen at 9:27 AM on February 6, 2013 [1 favorite]
Coke makes plenty while there are dozens of other colas out there that I can't distinguish from Coke. Apple will still make a mint even if they let everyone copy everything. Who wants a copy?
posted by cjorgensen at 9:27 AM on February 6, 2013 [1 favorite]
If, however, they just sit on it...
Usually what happens is not that you actually have a drug and are sitting on it - after the development costs, that would be insane. It's that things got sticky in development and you decided that the odds were that it wasn't going to be a drug (so further development was throwing good money after bad) or that it wasn't going to be profitable (offer no advantage over what's already out there already or the cost of making the drug was going to be greater than what anyone would be willing to pay).
posted by Kid Charlemagne at 9:28 AM on February 6, 2013
Usually what happens is not that you actually have a drug and are sitting on it - after the development costs, that would be insane. It's that things got sticky in development and you decided that the odds were that it wasn't going to be a drug (so further development was throwing good money after bad) or that it wasn't going to be profitable (offer no advantage over what's already out there already or the cost of making the drug was going to be greater than what anyone would be willing to pay).
posted by Kid Charlemagne at 9:28 AM on February 6, 2013
All I know is that patents are a blight upon the software industry. They are killing the golden goose. The sooner they go away the better it will be for everyone1. Ask any of the software giants: they don't file patents because they actually care about patents, but because they need to have ammunition for the defense against other companies with patents. Do away with the patents and everyone could stop wasting a lot of valuable time on bullshit paperwork.
1. Except for Intellectual Ventures, who are the bad guys anyway, so who cares?
posted by Mars Saxman at 9:30 AM on February 6, 2013 [4 favorites]
1. Except for Intellectual Ventures, who are the bad guys anyway, so who cares?
posted by Mars Saxman at 9:30 AM on February 6, 2013 [4 favorites]
Coke makes plenty while there are dozens of other colas out there that I can't distinguish from Coke. Apple will still make a mint even if they let everyone copy everything. Who wants a copy?
The patent system is supposed to help the little guy that comes up with an awesome invention, sees it subsumed by a big corporation with big production, big marketing and big lawyers.
posted by Talez at 9:31 AM on February 6, 2013 [2 favorites]
The patent system is supposed to help the little guy that comes up with an awesome invention, sees it subsumed by a big corporation with big production, big marketing and big lawyers.
posted by Talez at 9:31 AM on February 6, 2013 [2 favorites]
There are a million stories like this, but it is so obvious to me that patents are stifling innovation. A small tech company of about 20 people here got sued because their product emailed locations. Apparently someone has a patent about sending location data over email.
They lost and were forced to sell to a competitor with deep pockets and patents of their own.
So much for innovation and disruption.
posted by sauril at 9:39 AM on February 6, 2013
They lost and were forced to sell to a competitor with deep pockets and patents of their own.
So much for innovation and disruption.
posted by sauril at 9:39 AM on February 6, 2013
"The patent system is supposed to help the little guy that comes up with an awesome invention, sees it subsumed by a big corporation with big production, big marketing and big lawyers."
And you probably don't need telling that in practice what happens is that as a little guy if you don't sell out a big stake to someone with a large patent portfolio to protect you from lawsuits at a fairly early stage, someone will come in and take a huge stake.
Often several someones, because there are overlapping patents.
So if you don't have five or ten million bucks to stake the lawyers with, the non-practicing patent trolls will steal your business.
And I have several brilliant friends who are making good livings by being part of the patent litigation process, doing things like flying around the country collecting old cars so that they can prove that a particular version of the radio implemented prior art, rather than innovating themselves.
We all lose when this happens.
Drug exclusivity can be handled with the rest of the drug licensing process. Most of manufacturing can be handled as trade secrets. For the rest, yes, there will be some theft of ideas, but will that economic load exceed the drain the lawyers are currently putting on innovation? Evidence suggests not.
posted by straw at 9:50 AM on February 6, 2013
And you probably don't need telling that in practice what happens is that as a little guy if you don't sell out a big stake to someone with a large patent portfolio to protect you from lawsuits at a fairly early stage, someone will come in and take a huge stake.
Often several someones, because there are overlapping patents.
So if you don't have five or ten million bucks to stake the lawyers with, the non-practicing patent trolls will steal your business.
And I have several brilliant friends who are making good livings by being part of the patent litigation process, doing things like flying around the country collecting old cars so that they can prove that a particular version of the radio implemented prior art, rather than innovating themselves.
We all lose when this happens.
Drug exclusivity can be handled with the rest of the drug licensing process. Most of manufacturing can be handled as trade secrets. For the rest, yes, there will be some theft of ideas, but will that economic load exceed the drain the lawyers are currently putting on innovation? Evidence suggests not.
posted by straw at 9:50 AM on February 6, 2013
"Boldrin & Levine's view is by no means universally accepted. For example, see the Opinion of European Union Economic and Social Committee, COM (1995) 661 final (July 11, 1996), (recognizing that "Europe is lagging further and further behind the USA," as evidenced by the stark contrast in number of biotech patents, firms, and products; proposing strong patent protection as in the United States to solve "Europe's backwardness")."
That's circular though — the evidence of fewer patents used as a justification for a stronger patent system. If the patent system is weaker, it makes sense that less innovation is captured by patents to begin with.
"Given that we had a period where everyone protected their IP with trade secrets (the high middle ages) and it wasn't exactly innovation-a-go-go makes me question their conclusion."
The high middle ages were a hotbed of innovation, relative to what came before. Hell, around that time, curved seams and sleeves were invented (along with the generally agreed beginning of fashion). But more to the point, that's a profoundly silly objection. Your critique of drug testing is a lot more trenchant.
posted by klangklangston at 9:52 AM on February 6, 2013 [1 favorite]
That's circular though — the evidence of fewer patents used as a justification for a stronger patent system. If the patent system is weaker, it makes sense that less innovation is captured by patents to begin with.
"Given that we had a period where everyone protected their IP with trade secrets (the high middle ages) and it wasn't exactly innovation-a-go-go makes me question their conclusion."
The high middle ages were a hotbed of innovation, relative to what came before. Hell, around that time, curved seams and sleeves were invented (along with the generally agreed beginning of fashion). But more to the point, that's a profoundly silly objection. Your critique of drug testing is a lot more trenchant.
posted by klangklangston at 9:52 AM on February 6, 2013 [1 favorite]
The patent system is supposed to help the little guy that comes up with an awesome invention, sees it subsumed by a big corporation with big production, big marketing and big lawyers.
Obviously this isn't how the patent system works now (if it ever did), but wouldn't it be just as bad if not worse if we just did away with it and didn't provide some mechanism to "help the little guy out" as Talez puts it?
posted by saulgoodman at 9:58 AM on February 6, 2013
Obviously this isn't how the patent system works now (if it ever did), but wouldn't it be just as bad if not worse if we just did away with it and didn't provide some mechanism to "help the little guy out" as Talez puts it?
posted by saulgoodman at 9:58 AM on February 6, 2013
The patent system is supposed to help the little guy that comes up with an awesome invention, sees it subsumed by a big corporation with big production, big marketing and big lawyers.
No, the patent system is a bribe to get inventors to share their trade secrets--in exchange for a temporary monopoly--to promote the dissemination of innovation.
Patents don't help the little guy because they were never designed for that purpose. Holding on to patents out of a desire to protect the little guy makes no sense. If you want to protect the little guy, we need a system that's designed for that purpose.
posted by straight at 10:05 AM on February 6, 2013 [3 favorites]
No, the patent system is a bribe to get inventors to share their trade secrets--in exchange for a temporary monopoly--to promote the dissemination of innovation.
Patents don't help the little guy because they were never designed for that purpose. Holding on to patents out of a desire to protect the little guy makes no sense. If you want to protect the little guy, we need a system that's designed for that purpose.
posted by straight at 10:05 AM on February 6, 2013 [3 favorites]
There seems to be overwhelming agreement in many quarters, is it just the glacial inertia of the judiciary preventing basic changes?
posted by sammyo at 10:25 AM on February 6, 2013
posted by sammyo at 10:25 AM on February 6, 2013
All I know is that patents are a blight upon the software industry. They are killing the golden goose.
You really shouldn't overstate the case. The software industry (or really the computer industry as a whole) has been an almost unparalleled example of growth and innovation and continues to be. And it continues to be centered on the United States despite (or maybe because of!) the fact that the US has much stronger patent protection for computer-implemented inventions.
Maybe software patents are, on balance, a net drag on the software industry. In my opinion the answer to that question ultimately boils down to which economists you believe. But this overwrought talk of software patents causing some kind of industry-destroying apocalypse is clearly nonsense and has been for decades. It really harms the credibility of those that advance that position. It's much like the people who have been predicting that software patents would, any day now, destroy free software and open source software.
Ask any of the software giants: they don't file patents because they actually care about patents, but because they need to have ammunition for the defense against other companies with patents.
This is empirically false. When Apple announced the iPhone, Jobs pointed out that "We filed for over 200 patents for all the inventions in iPhone and we intend to protect them." Jobs later indicated that those patents were intended not defensively but to prevent the iPhone from being copied by competitors:
Another example: Amazon's one-click patent, which it asserted against a competitor (Barnes & Noble) and licensed to others (e.g. Apple). Amazon is not quite a software giant, but it is becoming more and more of a software company with the Kindle and its various software-as-a-service products.
posted by jedicus at 10:26 AM on February 6, 2013 [1 favorite]
You really shouldn't overstate the case. The software industry (or really the computer industry as a whole) has been an almost unparalleled example of growth and innovation and continues to be. And it continues to be centered on the United States despite (or maybe because of!) the fact that the US has much stronger patent protection for computer-implemented inventions.
Maybe software patents are, on balance, a net drag on the software industry. In my opinion the answer to that question ultimately boils down to which economists you believe. But this overwrought talk of software patents causing some kind of industry-destroying apocalypse is clearly nonsense and has been for decades. It really harms the credibility of those that advance that position. It's much like the people who have been predicting that software patents would, any day now, destroy free software and open source software.
Ask any of the software giants: they don't file patents because they actually care about patents, but because they need to have ammunition for the defense against other companies with patents.
This is empirically false. When Apple announced the iPhone, Jobs pointed out that "We filed for over 200 patents for all the inventions in iPhone and we intend to protect them." Jobs later indicated that those patents were intended not defensively but to prevent the iPhone from being copied by competitors:
“I will spend my last dying breath if I need to, and I will spend every penny of Apple’s $40 billion in the bank, to right this wrong,” Jobs said. “I’m going to destroy Android, because it’s a stolen product. I’m willing to go thermonuclear war on this.”Now, Jobs is dead, and Cook may take Apple in a different direction, but clearly "a software giant" valued patents as a competitive advantage, not just as a defensive tool in an arms race.
...
“I don’t want your money. If you offer me $5 billion, I won’t want it. I’ve got plenty of money. I want you to stop using our ideas in Android, that’s all I want.”
Another example: Amazon's one-click patent, which it asserted against a competitor (Barnes & Noble) and licensed to others (e.g. Apple). Amazon is not quite a software giant, but it is becoming more and more of a software company with the Kindle and its various software-as-a-service products.
posted by jedicus at 10:26 AM on February 6, 2013 [1 favorite]
No, the patent system is a bribe to get inventors to share their trade secrets--in exchange for a temporary monopoly--to promote the dissemination of innovation.
What you describe is called the "reward theory" of patents. There are others. For example, another theory (commercialization theory) is that patents are a system of well-defined property rights that act as a signal to all of the parties interested in an invention and enable them to structure the kinds of complex deals necessary to bring new products and services to the market. F. Scott Kieff*, On the Economics of Patent Law and Policy, in Patent Law and Theory: A Handbook of Contemporary Research 3, 34-42 (Toshiko Takenaka ed., 2008). These parties include inventors, employers, investors, manufacturers, distributors, integrators, and retailers.
There are still other theories, such as prospect theory. Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. & Econ. 265 (1977).
The law is shaped by the theory behind it, consciously or unconsciously. For example, someone who subscribes to the reward theory is more likely to support compulsory licensing or even a move to a system of cash rewards for inventions instead of patents, while someone who subscribes to the commercialization theory is more likely to oppose compulsory licenses.
* Full disclosure: I work with Scott.
posted by jedicus at 10:43 AM on February 6, 2013 [3 favorites]
What you describe is called the "reward theory" of patents. There are others. For example, another theory (commercialization theory) is that patents are a system of well-defined property rights that act as a signal to all of the parties interested in an invention and enable them to structure the kinds of complex deals necessary to bring new products and services to the market. F. Scott Kieff*, On the Economics of Patent Law and Policy, in Patent Law and Theory: A Handbook of Contemporary Research 3, 34-42 (Toshiko Takenaka ed., 2008). These parties include inventors, employers, investors, manufacturers, distributors, integrators, and retailers.
There are still other theories, such as prospect theory. Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. & Econ. 265 (1977).
The law is shaped by the theory behind it, consciously or unconsciously. For example, someone who subscribes to the reward theory is more likely to support compulsory licensing or even a move to a system of cash rewards for inventions instead of patents, while someone who subscribes to the commercialization theory is more likely to oppose compulsory licenses.
* Full disclosure: I work with Scott.
posted by jedicus at 10:43 AM on February 6, 2013 [3 favorites]
Both views of patents presented here - that it was meant to help the little guy, or that it was intended as an incentive for eventually passing innovation into the public domain - both views are failed by the current system for the tech industry (and probably elsewhere).
Much of what it patented could never be protected as a trade secret because it's so damn obvious, even when it's novel. (And much of it isn't even novel.) A problem tech companies face is that if you decide to make something, anything, even in sealed room with no knowledge of the outside world, you will inadvertently re-"invent" dozens of patented "innovations" just in the straightforward trudge of taking obvious steps towards building your functionality.
There is no new product that can't be litigated as stepping on a patent. The only way for a product to be safe is for it to be such a market failure that it's not worth anything.
posted by anonymisc at 10:50 AM on February 6, 2013 [2 favorites]
Much of what it patented could never be protected as a trade secret because it's so damn obvious, even when it's novel. (And much of it isn't even novel.) A problem tech companies face is that if you decide to make something, anything, even in sealed room with no knowledge of the outside world, you will inadvertently re-"invent" dozens of patented "innovations" just in the straightforward trudge of taking obvious steps towards building your functionality.
There is no new product that can't be litigated as stepping on a patent. The only way for a product to be safe is for it to be such a market failure that it's not worth anything.
posted by anonymisc at 10:50 AM on February 6, 2013 [2 favorites]
But this overwrought talk of software patents causing some kind of industry-destroying apocalypse is clearly nonsense and has been for decades
Whether you realise it or not, you're making a straw man.
posted by anonymisc at 10:54 AM on February 6, 2013 [1 favorite]
Whether you realise it or not, you're making a straw man.
posted by anonymisc at 10:54 AM on February 6, 2013 [1 favorite]
Ask any of the software giants: they don't file patents because they actually care about patents, but because they need to have ammunition for the defense against other companies with patents.
Also, among software startups defensive patenting* is one of the least commonly cited reasons for patenting. The 2008 Berkeley Patent Survey found that only "obtaining licensing revenue" ranked lower, while "enhancing company reputation", "improving chances of IPO or acquisition", improving chances of securing investment", and "preventing others from copying our products or services" all ranked higher. Preventing copying ranked highest.
* I lumped together "improve negotiating position with other companies (e.g. cross-license)" and "prevent patent infringement actions against us". They were also basically tied for second-to-last.
Whether you realise it or not, you're making a straw man.
Am I? "patents are a blight upon the software industry. They are killing the golden goose." How is that not a claim that patents are destroying the software industry?
posted by jedicus at 10:57 AM on February 6, 2013
Also, among software startups defensive patenting* is one of the least commonly cited reasons for patenting. The 2008 Berkeley Patent Survey found that only "obtaining licensing revenue" ranked lower, while "enhancing company reputation", "improving chances of IPO or acquisition", improving chances of securing investment", and "preventing others from copying our products or services" all ranked higher. Preventing copying ranked highest.
* I lumped together "improve negotiating position with other companies (e.g. cross-license)" and "prevent patent infringement actions against us". They were also basically tied for second-to-last.
Whether you realise it or not, you're making a straw man.
Am I? "patents are a blight upon the software industry. They are killing the golden goose." How is that not a claim that patents are destroying the software industry?
posted by jedicus at 10:57 AM on February 6, 2013
The software industry (or really the computer industry as a whole) has been an almost unparalleled example of growth and innovation and continues to be. And it continues to be centered on the United States despite (or maybe because of!) the fact that the US has much stronger patent protection for computer-implemented inventions.
It exploded after one guy decided not to patent HTML, and then it exploded again after one guy decided not to patent his operating system. The overwhelming majority of innovation beyond eye candy is in the public domain and in open source because closed source shops may crank out nice marketing materials, but there's no such thing as progress when obvious patents can be controlled by one private corporation.
We only have the software industry because Xerox failed to protect their innovation with patents:
I'm fine with Apple trademarking their look and feel. But giving them patents for a slide lock, when they have existed on doors for centuries... it's just fucking stupid. It only happens because judges and patent attorneys think computers are magic.
posted by tripping daisy at 11:06 AM on February 6, 2013 [2 favorites]
It exploded after one guy decided not to patent HTML, and then it exploded again after one guy decided not to patent his operating system. The overwhelming majority of innovation beyond eye candy is in the public domain and in open source because closed source shops may crank out nice marketing materials, but there's no such thing as progress when obvious patents can be controlled by one private corporation.
We only have the software industry because Xerox failed to protect their innovation with patents:
Many patent disclosures were in fact submitted for the innovations in the Star; however, at the time the 1975 Xerox Consent Decree, an FTC antitrust action, placed restrictions on what the company was able to patent. In addition, when the Star disclosures were being prepared, the Xerox patent attorneys were busy with several other new technologies such as laser printing. Finally, patents on software, particularly those relating to user interfaces, were an untested legal area at that time.This has serious implications for humanity in general. If any part of the process that brought a 3d printed bionic hand to a South African child had been patented, he would still be without one.
Xerox did go to trial to protect the Star user interface. In 1989, after Apple sued Microsoft for copyright infringement of its Macintosh user interface in Windows, Xerox filed a similar lawsuit against Apple; however, it was thrown out because a three year statute of limitations had passed. (Apple eventually lost its lawsuit in 1994, losing all claims to the user interface).
I'm fine with Apple trademarking their look and feel. But giving them patents for a slide lock, when they have existed on doors for centuries... it's just fucking stupid. It only happens because judges and patent attorneys think computers are magic.
posted by tripping daisy at 11:06 AM on February 6, 2013 [2 favorites]
But anyway, hang out on Slashdot or any number of tech-oriented sites for a while and you'll see no end of doom-and-gloom predictions.
"Too late for that, the damage is done. The patents [the PTO] already issued are enough to destroy the software industry for the next 15 years at least." That's from 2 days ago on Slashdot and was moderated +4, Insightful. That kind of thing gets posted in almost every patent-related article on the site. From what I've seen the same kind of thing happens on techdirt, various subreddits, Ars Technica, and other sites where the prevailing opinion is decidedly anti-patent.
In 2006 Bruce Perens wrote an article warning that a single large company could "could completely destroy Open Source in the United States" with software patents.
So, no, it's not a straw man.
posted by jedicus at 11:10 AM on February 6, 2013
"Too late for that, the damage is done. The patents [the PTO] already issued are enough to destroy the software industry for the next 15 years at least." That's from 2 days ago on Slashdot and was moderated +4, Insightful. That kind of thing gets posted in almost every patent-related article on the site. From what I've seen the same kind of thing happens on techdirt, various subreddits, Ars Technica, and other sites where the prevailing opinion is decidedly anti-patent.
In 2006 Bruce Perens wrote an article warning that a single large company could "could completely destroy Open Source in the United States" with software patents.
So, no, it's not a straw man.
posted by jedicus at 11:10 AM on February 6, 2013
You really shouldn't overstate the case. The software industry (or really the computer industry as a whole) has been an almost unparalleled example of growth and innovation and continues to be.
Software patents are a big problem precisely because the software industry has been such an engine of growth. Software patents have only become a big deal over the last decade and we are only now starting to see the consequences of this practice: it is growing steadily more difficult to develop anything that doesn't accidentally step on some random patent.
In a world where everyone is breaking the law, how do you keep from going to jail? You can either be so big and important that the cops don't want to mess with you, or you can stay small, keep out of their way, and hope they don't notice you.
This is the situation which is developing in the software industry. There are so many patents covering such a broad array of practices that it is practically impossible to write any useful software without committing some violations. You can either stay small and hope that nobody notices you, or you can get big and fight back, but the middle is becoming a very risky place to be.
This is not a recipe for continued innovation and healthy growth in the software industry. This is a recipe for increased stratification, increased power to a decreasing pool of increasingly risk-averse tech giants.
Also, among software startups defensive patenting* is one of the least commonly cited reasons for patenting.
It is the reason cited internally at both Microsoft and Google. It is the reason cited at the startup I work for now. I have never heard anyone try to tell a software engineer that there is any other reason why they ought to waste their time working on a patent filing.
posted by Mars Saxman at 11:16 AM on February 6, 2013 [1 favorite]
Software patents are a big problem precisely because the software industry has been such an engine of growth. Software patents have only become a big deal over the last decade and we are only now starting to see the consequences of this practice: it is growing steadily more difficult to develop anything that doesn't accidentally step on some random patent.
In a world where everyone is breaking the law, how do you keep from going to jail? You can either be so big and important that the cops don't want to mess with you, or you can stay small, keep out of their way, and hope they don't notice you.
This is the situation which is developing in the software industry. There are so many patents covering such a broad array of practices that it is practically impossible to write any useful software without committing some violations. You can either stay small and hope that nobody notices you, or you can get big and fight back, but the middle is becoming a very risky place to be.
This is not a recipe for continued innovation and healthy growth in the software industry. This is a recipe for increased stratification, increased power to a decreasing pool of increasingly risk-averse tech giants.
Also, among software startups defensive patenting* is one of the least commonly cited reasons for patenting.
It is the reason cited internally at both Microsoft and Google. It is the reason cited at the startup I work for now. I have never heard anyone try to tell a software engineer that there is any other reason why they ought to waste their time working on a patent filing.
posted by Mars Saxman at 11:16 AM on February 6, 2013 [1 favorite]
The patent system is a difference between the high rate of innovation at the grassroots of the tech industry, and the low rate of innovation that reaches the consumer. Yes, that "low rate" is higher than many less-innovative industries, and when you don't know the shocking size of the pool that dribble came from it looks like everything is hunky-dory, shocking how much innovation gets crushed by power and corruption instead of merit.
Because that's what the patent system is for - if you can't compete with someone's innovation on merit in the marketplace, patents allow you to outcompete them with whatever you strength is - with lawyers, or with money, or with deals with third parties, or with corruption. Whatever your strength is (it's not merit) patents allow you to transform that strength into un-levelling the playing field.
And the net retardation is not only cumulative, it also feeds back into the loop.
posted by anonymisc at 11:20 AM on February 6, 2013 [1 favorite]
Because that's what the patent system is for - if you can't compete with someone's innovation on merit in the marketplace, patents allow you to outcompete them with whatever you strength is - with lawyers, or with money, or with deals with third parties, or with corruption. Whatever your strength is (it's not merit) patents allow you to transform that strength into un-levelling the playing field.
And the net retardation is not only cumulative, it also feeds back into the loop.
posted by anonymisc at 11:20 AM on February 6, 2013 [1 favorite]
In the 1800's a scale model representing the patent was required. There were issues, storage probably not the least, but it probably made the details reasonably clear. Jump ahead a century and try to make heads or tails what is going on. But if you build something as obvious as the wheel, there is likely a couple dozen software patents that can be used to wage an attack.
posted by sammyo at 11:21 AM on February 6, 2013
posted by sammyo at 11:21 AM on February 6, 2013
The overwhelming majority of innovation beyond eye candy is in the public domain and in open source because closed source shops may crank out nice marketing materials, but there's no such thing as progress when obvious patents can be controlled by one private corporation.
Actually, empirical studies have shown that open source isn't very good at innovation and mostly replicates existing technology [pdf]. The linked paper is a survey of the 500 most actively developed programs listed on sourceforge.net (admittedly as of 2005). It found that 87.2% were not innovative at all (i.e. copied an existing technology for an existing market).
We only have the software industry because Xerox failed to protect their innovation with patents
Ad hoc ergo propter hoc. We don't know what would have happened if Xerox had been able to patent the Star user interface.
If any part of the process that brought a 3d printed bionic hand to a South African child had been patented, he would still be without one.
The hand was made with a MakerBot Replicator 2. I guarantee you that the electronics inside the Replicator 2 and the methods used to make the electronics and materials that it is made of are covered by dozens if not hundreds of patents.
Also, MakerBot itself owns at least one patent, 8287794, which may cover the Replicator 2.
posted by jedicus at 11:26 AM on February 6, 2013
Actually, empirical studies have shown that open source isn't very good at innovation and mostly replicates existing technology [pdf]. The linked paper is a survey of the 500 most actively developed programs listed on sourceforge.net (admittedly as of 2005). It found that 87.2% were not innovative at all (i.e. copied an existing technology for an existing market).
We only have the software industry because Xerox failed to protect their innovation with patents
Ad hoc ergo propter hoc. We don't know what would have happened if Xerox had been able to patent the Star user interface.
If any part of the process that brought a 3d printed bionic hand to a South African child had been patented, he would still be without one.
The hand was made with a MakerBot Replicator 2. I guarantee you that the electronics inside the Replicator 2 and the methods used to make the electronics and materials that it is made of are covered by dozens if not hundreds of patents.
Also, MakerBot itself owns at least one patent, 8287794, which may cover the Replicator 2.
posted by jedicus at 11:26 AM on February 6, 2013
This is timely, in light of the patent troll going after podcasts.
Out of curiosity, what would happen to a podcaster (especially a non-American one) who simply referred the complainant to the answer given in Arkell vs Pressdram?
posted by Grangousier at 11:44 AM on February 6, 2013 [1 favorite]
Out of curiosity, what would happen to a podcaster (especially a non-American one) who simply referred the complainant to the answer given in Arkell vs Pressdram?
posted by Grangousier at 11:44 AM on February 6, 2013 [1 favorite]
If a drug company has a shelved product because they don't know how to manufacture it economically (which my experience tells me is a rare case, given the usual profit margin), why not open that new drug up to a drug company who might have smarter chemical engineers?
I like the "use it or lose it" patent idea. Does anyone have any arguments about negative side-effects? Sitting on a patent doesn't seem to help anyone but patent trolls.
posted by double block and bleed at 11:46 AM on February 6, 2013
I like the "use it or lose it" patent idea. Does anyone have any arguments about negative side-effects? Sitting on a patent doesn't seem to help anyone but patent trolls.
posted by double block and bleed at 11:46 AM on February 6, 2013
Actually, empirical studies have shown that open source isn't very good at innovation and mostly replicates existing technology [pdf]. The linked paper is a survey of the 500 most actively developed programs listed on sourceforge.net (admittedly as of 2005). It found that 87.2% were not innovative at all (i.e. copied an existing technology for an existing market).
Forgive me if I missed this in the paper, but how good is closed source at innovation? 100% innovative? 10% innovative? Many closed-source apps copy existing technology for an existing market.
posted by compartment at 11:56 AM on February 6, 2013 [1 favorite]
Forgive me if I missed this in the paper, but how good is closed source at innovation? 100% innovative? 10% innovative? Many closed-source apps copy existing technology for an existing market.
posted by compartment at 11:56 AM on February 6, 2013 [1 favorite]
Actually, empirical studies have shown that open source isn't very good at innovation and mostly replicates existing technology [pdf]. The linked paper is a survey of the 500 most actively developed programs listed on sourceforge.net (admittedly as of 2005). It found that 87.2% were not innovative at all (i.e. copied an existing technology for an existing market).
Yes, but in some cases "innovation" isn't what you need. In 2005 I didn't need an innovation... I needed a web server than didn't crash every goddamn minute. Or I needed a CRM that would run on non-proprietary databases. Very few open source projects get the critical mass needed to sustain themselves, and that's a good thing. Once that software becomes a standard by defeating all of the other projects, as it would have done in a real market in the past, it can be immediately extended or integrated into another product to further innovate.
Keep in mind that the current patent rules were formulated in a time period when some thought we'd need 20 year patents so the inventions would have enough time to spread throughout the country. The world is a drastically different place, and we're still trying to deal with 20th Century technology through the legal framework of the 18th.
Corporations should go back to creating products that will be profitable if and only if the public willingly purchases their products. Our patent and legal systems are so badly broken that individuals are being sued by companies that don't sell any products. It's ridiculous.
posted by tripping daisy at 12:06 PM on February 6, 2013
Yes, but in some cases "innovation" isn't what you need. In 2005 I didn't need an innovation... I needed a web server than didn't crash every goddamn minute. Or I needed a CRM that would run on non-proprietary databases. Very few open source projects get the critical mass needed to sustain themselves, and that's a good thing. Once that software becomes a standard by defeating all of the other projects, as it would have done in a real market in the past, it can be immediately extended or integrated into another product to further innovate.
Keep in mind that the current patent rules were formulated in a time period when some thought we'd need 20 year patents so the inventions would have enough time to spread throughout the country. The world is a drastically different place, and we're still trying to deal with 20th Century technology through the legal framework of the 18th.
Corporations should go back to creating products that will be profitable if and only if the public willingly purchases their products. Our patent and legal systems are so badly broken that individuals are being sued by companies that don't sell any products. It's ridiculous.
posted by tripping daisy at 12:06 PM on February 6, 2013
So, far, I've only seen weak defenses of the status quo by those here very invested in the process. What I'd like to see is an actual statement of what these people think should be changed. jedicus seems to know his stuff -- so what do you suggest?
It is *well* known that small software developers who attain some measure of visibility (e.g. on the App Store) get hit with "welcome" packages by non-practicing entities with trivial patents as soon as they become moderately visible. And this behavior, while not technically criminal, would be considered by most to be a form of extortion. So the question to you is --- what should change?
posted by smidgen at 12:08 PM on February 6, 2013 [1 favorite]
It is *well* known that small software developers who attain some measure of visibility (e.g. on the App Store) get hit with "welcome" packages by non-practicing entities with trivial patents as soon as they become moderately visible. And this behavior, while not technically criminal, would be considered by most to be a form of extortion. So the question to you is --- what should change?
posted by smidgen at 12:08 PM on February 6, 2013 [1 favorite]
I like the "use it or lose it" patent idea. Does anyone have any arguments about negative side-effects?
I don't know about negative side effects as such, but one serious implementation issue with this idea (which is more formally known as a "working requirement") is that the exceptions tend to swallow the rule. Then let's tighten the exceptions, you might say. But that basically requires the government to make business judgment calls.
For example, suppose a pharma company can't figure out how to make a drug profitably. But another company claims it can and wants to invoke "use it or lose it." But it turns out that the original company wanted to manufacture the drug in the US whereas the second company was willing to manufacture it overseas to save costs. Do we want the government to make that judgment call? I don't know. I do know that it would probably involve a lot of expensive "dueling economic experts" litigation.
In practice, in most countries that have working requirements it ends up being a formality. Either a company can say "yep we're using it" or they can easily come up a box to check on the long list of excuses.
posted by jedicus at 12:11 PM on February 6, 2013 [1 favorite]
I don't know about negative side effects as such, but one serious implementation issue with this idea (which is more formally known as a "working requirement") is that the exceptions tend to swallow the rule. Then let's tighten the exceptions, you might say. But that basically requires the government to make business judgment calls.
For example, suppose a pharma company can't figure out how to make a drug profitably. But another company claims it can and wants to invoke "use it or lose it." But it turns out that the original company wanted to manufacture the drug in the US whereas the second company was willing to manufacture it overseas to save costs. Do we want the government to make that judgment call? I don't know. I do know that it would probably involve a lot of expensive "dueling economic experts" litigation.
In practice, in most countries that have working requirements it ends up being a formality. Either a company can say "yep we're using it" or they can easily come up a box to check on the long list of excuses.
posted by jedicus at 12:11 PM on February 6, 2013 [1 favorite]
In practice, in most countries that have working requirements it ends up being a formality.
Right. The system is irrevocably broken.
posted by ChurchHatesTucker at 12:27 PM on February 6, 2013
Right. The system is irrevocably broken.
posted by ChurchHatesTucker at 12:27 PM on February 6, 2013
so what do you suggest?
Eliminate or reduce the presumption of validity. Instead of requiring clear and convincing evidence of invalidity, require only a preponderance of the evidence (aka "more likely than not").
Institute loser pays by default in patent cases (i.e. the losing party pays the winning party's reasonable attorneys' fees). Those two changes alone would radically shift the economics of so-called patent trolling. Cost-of-litigation nuisance suits would basically just end overnight.
Dramatically increase the patent application fees (as in: $50-$100k). For small entities, they get most of it back if the patent issues. For large entities, the Patent Office keeps it all. This would have several effects. First, it would make all applicants, but especially large companies, think much harder about which inventions were actually worth bothering with patenting. This would reduce the backlog and reduce the amount of 'chaff' that everyone has to sift through.
Second, it would put more of the Patent Office's funding on the front end rather than on the back end. See, the Patent Office is funded by fees, not taxes, but most of the fees it collects are maintenance fees on issued patents, not application fees. That gives the Patent Office a certain financial incentive to issue patents. Shifting more of its funding upfront would eliminate that distortion.
Significantly tighten the written description and enablement requirements. This is the requirement that a patent "contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." When people complain about overly broad patents, this is what they are complaining about: patentees who got a patent back in the late 90s or early 00s on some computer-related thing and are now twisting the words to the breaking point to make them read on later technologies that the inventor had no idea about. In patent law terms, the scope of enablement should not encompass any after-arising technology that a person having ordinary skill in the art at the time of the invention could not have used without undue experimentation.
There are some other tweaks that I would like to see, but those are the major ones. Some of them (fee shifting; written description reform) are actually shared by some of the more strongly anti-patent scholars, such as Bessen & Meurer. So there's common ground on some policy recommendations.
posted by jedicus at 12:32 PM on February 6, 2013 [8 favorites]
Eliminate or reduce the presumption of validity. Instead of requiring clear and convincing evidence of invalidity, require only a preponderance of the evidence (aka "more likely than not").
Institute loser pays by default in patent cases (i.e. the losing party pays the winning party's reasonable attorneys' fees). Those two changes alone would radically shift the economics of so-called patent trolling. Cost-of-litigation nuisance suits would basically just end overnight.
Dramatically increase the patent application fees (as in: $50-$100k). For small entities, they get most of it back if the patent issues. For large entities, the Patent Office keeps it all. This would have several effects. First, it would make all applicants, but especially large companies, think much harder about which inventions were actually worth bothering with patenting. This would reduce the backlog and reduce the amount of 'chaff' that everyone has to sift through.
Second, it would put more of the Patent Office's funding on the front end rather than on the back end. See, the Patent Office is funded by fees, not taxes, but most of the fees it collects are maintenance fees on issued patents, not application fees. That gives the Patent Office a certain financial incentive to issue patents. Shifting more of its funding upfront would eliminate that distortion.
Significantly tighten the written description and enablement requirements. This is the requirement that a patent "contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." When people complain about overly broad patents, this is what they are complaining about: patentees who got a patent back in the late 90s or early 00s on some computer-related thing and are now twisting the words to the breaking point to make them read on later technologies that the inventor had no idea about. In patent law terms, the scope of enablement should not encompass any after-arising technology that a person having ordinary skill in the art at the time of the invention could not have used without undue experimentation.
There are some other tweaks that I would like to see, but those are the major ones. Some of them (fee shifting; written description reform) are actually shared by some of the more strongly anti-patent scholars, such as Bessen & Meurer. So there's common ground on some policy recommendations.
posted by jedicus at 12:32 PM on February 6, 2013 [8 favorites]
Dramatically increase the patent application fees (as in: $50-$100k). For small entities, they get most of it back if the patent issues.
So I can't help noticing there isn't even a "little guy" left in this scenario. Only "little entities"? Couldn't there be some way to fashion a less regressive system that actually does provide some capability for individuals without preexisting access to large amounts of capital to get some protection before they have to go seeking it? In one of my previous lives as a music producer, I found the law of the jungle these days seems to be don't share your idea with anyone who might have the resources to actually make it happen because they'll just steal it and legally protect it first (for example, I was once explicitly warned by someone seeking soundtrack music for a commercial project that the studio backing the project would most likely just create a sound-a-like version of my own recording if they liked it rather than license my original recording). How would your suggested reforms realistically allow small-time inventors/creators to protect their work from potential predators? I don't see how your ideal regime improves things at all at the level I might really care about. (I realize that's a mix of patent and copyright issues in my example, but the point is about the underlying principle.)
posted by saulgoodman at 1:01 PM on February 6, 2013 [2 favorites]
So I can't help noticing there isn't even a "little guy" left in this scenario. Only "little entities"? Couldn't there be some way to fashion a less regressive system that actually does provide some capability for individuals without preexisting access to large amounts of capital to get some protection before they have to go seeking it? In one of my previous lives as a music producer, I found the law of the jungle these days seems to be don't share your idea with anyone who might have the resources to actually make it happen because they'll just steal it and legally protect it first (for example, I was once explicitly warned by someone seeking soundtrack music for a commercial project that the studio backing the project would most likely just create a sound-a-like version of my own recording if they liked it rather than license my original recording). How would your suggested reforms realistically allow small-time inventors/creators to protect their work from potential predators? I don't see how your ideal regime improves things at all at the level I might really care about. (I realize that's a mix of patent and copyright issues in my example, but the point is about the underlying principle.)
posted by saulgoodman at 1:01 PM on February 6, 2013 [2 favorites]
China's already de facto implementing the proposed solution.
China has not abolished patents, if that's what you mean by the proposed solution. In fact they have done quite the opposite, relying more each year on the "utility model" which you could colloquially call a "mini-patent." They are cheaper, not subject to extensive evaluation, targeted for technology applications, and generally valid only in China (other countries have utility models too, though, but let's get real, where does your manufacturing take place now, hm). If you're interested in reading more, check out:
Chinese utility models – a lesser-known IP strategy
Focus on Chinese utility model patents
posted by whatzit at 1:06 PM on February 6, 2013
China has not abolished patents, if that's what you mean by the proposed solution. In fact they have done quite the opposite, relying more each year on the "utility model" which you could colloquially call a "mini-patent." They are cheaper, not subject to extensive evaluation, targeted for technology applications, and generally valid only in China (other countries have utility models too, though, but let's get real, where does your manufacturing take place now, hm). If you're interested in reading more, check out:
Chinese utility models – a lesser-known IP strategy
Focus on Chinese utility model patents
posted by whatzit at 1:06 PM on February 6, 2013
What they're proposing is...letting the sick pay (albeit only economic cost - such a deal) for the privilege of doing poorly documented, free-form experimental design efficacy testing. This is the magnetic copper healing bracelet model!
That sounds exactly right, but gobs of people are already routing around effective but expensive treatments for woo woo alternatives. It's not clear to me that loosening efficacy trial requirements would actually increase snake oil consumption. The nationwide poorly documented free-form efficacy testing of Airborne seems to be going stronger than ever, and no stack of well designed, peer-reviewed studies is likely to change that.
In other words, yeah, the changes they propose to counter the downsides of eliminating pharma patent protection would technically put effective pharmaceuticals on the same playing field as snake oil, but I'm not sure it would really change much about how people already decide what to pill to take.
posted by wam at 1:10 PM on February 6, 2013
That sounds exactly right, but gobs of people are already routing around effective but expensive treatments for woo woo alternatives. It's not clear to me that loosening efficacy trial requirements would actually increase snake oil consumption. The nationwide poorly documented free-form efficacy testing of Airborne seems to be going stronger than ever, and no stack of well designed, peer-reviewed studies is likely to change that.
In other words, yeah, the changes they propose to counter the downsides of eliminating pharma patent protection would technically put effective pharmaceuticals on the same playing field as snake oil, but I'm not sure it would really change much about how people already decide what to pill to take.
posted by wam at 1:10 PM on February 6, 2013
This article by James Bessen, A Generation of Software Patents, seems to be a clear, readable survey of the economic evidence on software patents as of 2011, such as it is. The point of the article is: we started this experiment in the 90s when courts made software patents more viable; we've had them for about one full cycle; how's it working out?
For context, Bessen (who I see on preview jedicus just mentioned as a more strongly anti-patent scholar) is a fellow at the Berkman Center, and wrote what seems like a thoroughly researched and reasoned paper in 2004 concluding that software patents acted as a substitute for R&D in the computer and electronic industries in the 90s -- i.e. that a firm that invested more in patents would invest less in R&D. This put him in a controversial position since it was relied on by one side and attacked by the other in the European software patent debate. Anyway.
Notable points from the 2011 paper:
Jedicus seems to be right that there's no undisputed evidence that software patents are hurting the industry. But I question whether that's good enough. I mean, we're talking about more than a quarter of the Patent Office's time (since software patents are hard to review), more than a thousand new federal cases a year, and untold programmer and lawyer time spent preparing and prosecuting patent applications. And philosophically, we're talking about a massive, opaque set of limitations on what kind of business you're allowed to have, in a country where you ought to be allowed to do something unless there's a good reason not to.
That last one I suspect is why so many programmers and other non-lawyers are bent out of shape on this subject -- and it's important. If I sit down at my keyboard to create something, and think "huh, I have no idea whether selling this will violate one of the hundreds of thousands of patents I don't understand -- why the heck do we have this system?" the answer "we think it might be helping the software industry grow, but maybe it's a net drag on the economy, it depends who you believe" is cold comfort. If I then go and post something absurd on Slashdot about the end of the software industry (those days are over for me, fortunately) ... well, there's a legitimate frustration and a legitimate point there, buried under the hyperbole.
posted by jhc at 1:12 PM on February 6, 2013 [7 favorites]
For context, Bessen (who I see on preview jedicus just mentioned as a more strongly anti-patent scholar) is a fellow at the Berkman Center, and wrote what seems like a thoroughly researched and reasoned paper in 2004 concluding that software patents acted as a substitute for R&D in the computer and electronic industries in the 90s -- i.e. that a firm that invested more in patents would invest less in R&D. This put him in a controversial position since it was relied on by one side and attacked by the other in the European software patent debate. Anyway.
Notable points from the 2011 paper:
- Software patent grants are increasing at an exponential rate, and now amount to a quarter of total patent grants. (Total patent grants are also growing exponentially, but it's a lower exponent.) Most of these grants are not in the software industry.
- Software patents are five times as likely to result in litigation as chemical patents, and litigation risk appears to be growing exponentially (in line with grants). Lawsuits involving software patents have tripled since 1999. (Business method and financial patents are even more likely to result in litigation.) The relative frequency compared to chemical patents seems to be because of the unclear boundaries of software patents.
- Within the software industry, the share of startups that hold software patents fell from 17% to 14% between 1996 and 2006. (Startups being firms that have been publicly listed for 0-5 years.) The share of publicly listed software companies in general with patents rose from 20% to 27%. Most software patents in the industry go to a few big players.
Jedicus seems to be right that there's no undisputed evidence that software patents are hurting the industry. But I question whether that's good enough. I mean, we're talking about more than a quarter of the Patent Office's time (since software patents are hard to review), more than a thousand new federal cases a year, and untold programmer and lawyer time spent preparing and prosecuting patent applications. And philosophically, we're talking about a massive, opaque set of limitations on what kind of business you're allowed to have, in a country where you ought to be allowed to do something unless there's a good reason not to.
That last one I suspect is why so many programmers and other non-lawyers are bent out of shape on this subject -- and it's important. If I sit down at my keyboard to create something, and think "huh, I have no idea whether selling this will violate one of the hundreds of thousands of patents I don't understand -- why the heck do we have this system?" the answer "we think it might be helping the software industry grow, but maybe it's a net drag on the economy, it depends who you believe" is cold comfort. If I then go and post something absurd on Slashdot about the end of the software industry (those days are over for me, fortunately) ... well, there's a legitimate frustration and a legitimate point there, buried under the hyperbole.
posted by jhc at 1:12 PM on February 6, 2013 [7 favorites]
The thing about all this is that I've heard all the arguments before, we've known about the problems with patents since the Unisys GIF debacle and that was the mid 90s, and nothing is ever done about them. Patent reform seems to have no visibility to lawmakers at all. We need to do things to increase that visibility.
There is an easy modification that would fix things: if you can only keep a patent you are actively using. So if Big Pharma invents the cure to the common cold and sells it, they get a fair period of exclusivity to make the investment worthwhile. If, however, they just sit on it and use it to prevent others from making the cure, the patent should expire quickly.
But what does it mean to "use" a patent? What if you have no manufacturing capacity yourself? Does it count if you license patents to others to use? What if no one buys it, could they then force the patent to expire by refusing to pay? But then, what if you license it for so much money that it's economically unfeasible to pay, and you do that to prevent people from making cold cures? And if you did have a way to produce the cure yourself (and "have" itself can be a complicated issue), you could always make a token product and price it out of people's reach the same way.
Now, Jobs is dead, and Cook may take Apple in a different direction, but clearly "a software giant" valued patents as a competitive advantage, not just as a defensive tool in an arms race.
But that created the arms race -- then Google went and got their own patents to wield against Apple.
Like others in this thread, I think there is a place for patents but not for software, not for design, and not for business methods. The purpose of patents was to stop people from making so many trade secrets -- so, a patent shouldn't be awarded for anything that we can't figure our for ourselves. You can reverse engineer and disassemble software, and to designers and business men you can say I SEE WAT U DID THERE. But generally, we should go back to patenting only set kinds of things, and not anything a guy can think of. (The other theories that jedicus mentions, at least from reading his summary, are singularly unappealing to me from the perspective of convincing me that patents are good and necessary things. Big things like patent law work best if you can point to a single, strong justification, not some handwavey appeal to complexity.)
But this overwrought talk of software patents causing some kind of industry-destroying apocalypse is clearly nonsense and has been for decades.
It is not. This is argument from ignorance; you don't know what the software industry would look like without patents. Maybe it has been greviously injured, and would be much more vibrant and employ many more people if software patents had never been allowed?
posted by JHarris at 2:05 PM on February 6, 2013 [2 favorites]
There is an easy modification that would fix things: if you can only keep a patent you are actively using. So if Big Pharma invents the cure to the common cold and sells it, they get a fair period of exclusivity to make the investment worthwhile. If, however, they just sit on it and use it to prevent others from making the cure, the patent should expire quickly.
But what does it mean to "use" a patent? What if you have no manufacturing capacity yourself? Does it count if you license patents to others to use? What if no one buys it, could they then force the patent to expire by refusing to pay? But then, what if you license it for so much money that it's economically unfeasible to pay, and you do that to prevent people from making cold cures? And if you did have a way to produce the cure yourself (and "have" itself can be a complicated issue), you could always make a token product and price it out of people's reach the same way.
Now, Jobs is dead, and Cook may take Apple in a different direction, but clearly "a software giant" valued patents as a competitive advantage, not just as a defensive tool in an arms race.
But that created the arms race -- then Google went and got their own patents to wield against Apple.
Like others in this thread, I think there is a place for patents but not for software, not for design, and not for business methods. The purpose of patents was to stop people from making so many trade secrets -- so, a patent shouldn't be awarded for anything that we can't figure our for ourselves. You can reverse engineer and disassemble software, and to designers and business men you can say I SEE WAT U DID THERE. But generally, we should go back to patenting only set kinds of things, and not anything a guy can think of. (The other theories that jedicus mentions, at least from reading his summary, are singularly unappealing to me from the perspective of convincing me that patents are good and necessary things. Big things like patent law work best if you can point to a single, strong justification, not some handwavey appeal to complexity.)
But this overwrought talk of software patents causing some kind of industry-destroying apocalypse is clearly nonsense and has been for decades.
It is not. This is argument from ignorance; you don't know what the software industry would look like without patents. Maybe it has been greviously injured, and would be much more vibrant and employ many more people if software patents had never been allowed?
posted by JHarris at 2:05 PM on February 6, 2013 [2 favorites]
Actually, empirical studies have shown that open source isn't very good at innovation and mostly replicates existing technology [pdf].This is a bit of a tangent, but.. this study has been around a while, and it says nothing of the sort. At least about the former. It in fact does not itemize projects related to developer tooling, and has a long discussion about what they chose "innovation" to mean (based on what the project summaries on sourceforge considered most important about themselves). Most notably, this same research is not applied to closed source projects, probably because as one can easily surmise -- the presence of a marketing team would tend to skew the results of relying on abstracts.
My hypothesis is that the primary predictor of innovation really has nothing to do with open or closed, but free time and possibly consequentially, funding. One could trace that back to closed as being superior (it tends to make more money), but this study doesn't really tell us that.
posted by smidgen at 2:25 PM on February 6, 2013 [1 favorite]
Boldrin and Levine have been grinding this axe for a longuish while now, but that article reaches some summits of disingenuity. I was particularly annoyed by this:
It is usually impossible to build a functioning device or software program from a modern patent application; this is made especially clear by the fact that some patented ideas do not and cannot work. For example, US Patent 6,025,810 was granted for moving information through the fififth dimension.
So, a single example of an unworkable patent (among hundreds of thousands granted), somehow proves that it is "usually" impossible to build a functioning device from a modern patent application? Excuse me, but this is, plainly put, bullshit. I am a patent attorney and once was a patent examiner. As a patent examiner, I did reject quite a few applications for lack of enablement (and yes, also some which plainly went against the laws of physics). Partly as a result of this, I also take enablement very seriously now when I'm drafting patent applications for my clients, to whom I always make clear that disclosure is a fundamental part of the patent bargain. Like jedicus, I wish that the enablement requirement was applied more strictly, but I certainly can't agree with Boldrin and Levine in the idea that modern patent applications are "usually" not enabling.
There is also a fundamental contradiction between their claims that:
a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person.
I mean, it's either the one of the other. Either the invention is obvious, in which case the skilled person can reproduce it even without the content of the patent, or the skilled person can't reproduce it with the content of the patent, in which case it can't be obvious either. By making both claims simultaneously, B&L overegg their case, and then some.
Another bit that stuck out:
A good case in point is that of the Wright brothers, who made a modest improvement in existing flight technology that they kept secret until they could lock it down on patents, then used their patents both to monopolize the US market and to prevent further innovation for nearly 20 years (Shulman, 2003).
Almost every single word in that sentence is wrong. Firstly, the Wright brothers did much more than a "modest improvement" in existing flight technology. Apart from a number of fundamental contributions to airfoil design for both wings and propellers, they invented the way in which every single aero plane bigger than a hangglider is piloted today. Secondly, they didn't keep this secret: they notably presented a paper at the Western Society of Engineers which, by the way, would afterwards be used as prior art against their own German patent. Thirdly, they most certainly didn't monopolize the US market: they granted licenses to most of their competitors, except to Glenn Curtiss and his associates, with whom they were locked in a bitter personal feud. Fourthly, they definitely didn't prevent further innovation for nearly 20 years: just compare the state of aviation in 1903 and in 1923!
But then, B&L's single source for those assertions is Seth Shulman's "Unlocking the Sky", which is a terrible, terrible book. Shulman doesn't understand a thing about aeronautics, and he has a ridiculous crush on Glenn Curtiss' main sponsor, none other than Alexander Graham Bell, to whom he has also dedicated a blushingly complacent biography and who, ironically, wasn't a stranger to patent shenanigans himself.
posted by Skeptic at 3:03 PM on February 6, 2013 [2 favorites]
It is usually impossible to build a functioning device or software program from a modern patent application; this is made especially clear by the fact that some patented ideas do not and cannot work. For example, US Patent 6,025,810 was granted for moving information through the fififth dimension.
So, a single example of an unworkable patent (among hundreds of thousands granted), somehow proves that it is "usually" impossible to build a functioning device from a modern patent application? Excuse me, but this is, plainly put, bullshit. I am a patent attorney and once was a patent examiner. As a patent examiner, I did reject quite a few applications for lack of enablement (and yes, also some which plainly went against the laws of physics). Partly as a result of this, I also take enablement very seriously now when I'm drafting patent applications for my clients, to whom I always make clear that disclosure is a fundamental part of the patent bargain. Like jedicus, I wish that the enablement requirement was applied more strictly, but I certainly can't agree with Boldrin and Levine in the idea that modern patent applications are "usually" not enabling.
There is also a fundamental contradiction between their claims that:
a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person.
I mean, it's either the one of the other. Either the invention is obvious, in which case the skilled person can reproduce it even without the content of the patent, or the skilled person can't reproduce it with the content of the patent, in which case it can't be obvious either. By making both claims simultaneously, B&L overegg their case, and then some.
Another bit that stuck out:
A good case in point is that of the Wright brothers, who made a modest improvement in existing flight technology that they kept secret until they could lock it down on patents, then used their patents both to monopolize the US market and to prevent further innovation for nearly 20 years (Shulman, 2003).
Almost every single word in that sentence is wrong. Firstly, the Wright brothers did much more than a "modest improvement" in existing flight technology. Apart from a number of fundamental contributions to airfoil design for both wings and propellers, they invented the way in which every single aero plane bigger than a hangglider is piloted today. Secondly, they didn't keep this secret: they notably presented a paper at the Western Society of Engineers which, by the way, would afterwards be used as prior art against their own German patent. Thirdly, they most certainly didn't monopolize the US market: they granted licenses to most of their competitors, except to Glenn Curtiss and his associates, with whom they were locked in a bitter personal feud. Fourthly, they definitely didn't prevent further innovation for nearly 20 years: just compare the state of aviation in 1903 and in 1923!
But then, B&L's single source for those assertions is Seth Shulman's "Unlocking the Sky", which is a terrible, terrible book. Shulman doesn't understand a thing about aeronautics, and he has a ridiculous crush on Glenn Curtiss' main sponsor, none other than Alexander Graham Bell, to whom he has also dedicated a blushingly complacent biography and who, ironically, wasn't a stranger to patent shenanigans himself.
posted by Skeptic at 3:03 PM on February 6, 2013 [2 favorites]
So I can't help noticing there isn't even a "little guy" left in this scenario. Only "little entities"? Couldn't there be some way to fashion a less regressive system that actually does provide some capability for individuals without preexisting access to large amounts of capital to get some protection before they have to go seeking it?
I didn't want to go on for pages and pages. The answer to your criticism (which is entirely valid) is twofold. First, there is actually a third category of entity, the micro entity, which encompasses many individual inventors. And there's no reason the system could not be further tweaked to make it even more progressive even as fees were raised on the mid and upper end.
Second, this is a part of what provisional patent applications are about. A low-capital applicant could file a (very inexpensive, fee-wise) provisional application, which holds their priority date, then seek out the necessary capital for the conversion to a full application.
posted by jedicus at 3:16 PM on February 6, 2013 [3 favorites]
I didn't want to go on for pages and pages. The answer to your criticism (which is entirely valid) is twofold. First, there is actually a third category of entity, the micro entity, which encompasses many individual inventors. And there's no reason the system could not be further tweaked to make it even more progressive even as fees were raised on the mid and upper end.
Second, this is a part of what provisional patent applications are about. A low-capital applicant could file a (very inexpensive, fee-wise) provisional application, which holds their priority date, then seek out the necessary capital for the conversion to a full application.
posted by jedicus at 3:16 PM on February 6, 2013 [3 favorites]
The linked paper is a survey of the 500 most actively developed programs listed on sourceforge.net (admittedly as of 2005).
Things have changed massively since 2005. Open source software, innovative (a judgement call) or not, has made rather significant changes to the way businesses can operate in terms of their web presence (with Content Management Frameworks like MODX, Blog Systems like WordPress, Content Management Systems like Drupal, etc.) and all the software they run on (open source languages, servers, databases), not to mention CRMs and even desktop software if a company is willing to try it. There are a ton of web based systems out there being created by companies large and small. The licensing model and the community model has been very innovative and very beneficial to many people.
posted by juiceCake at 4:46 PM on February 6, 2013
Things have changed massively since 2005. Open source software, innovative (a judgement call) or not, has made rather significant changes to the way businesses can operate in terms of their web presence (with Content Management Frameworks like MODX, Blog Systems like WordPress, Content Management Systems like Drupal, etc.) and all the software they run on (open source languages, servers, databases), not to mention CRMs and even desktop software if a company is willing to try it. There are a ton of web based systems out there being created by companies large and small. The licensing model and the community model has been very innovative and very beneficial to many people.
posted by juiceCake at 4:46 PM on February 6, 2013
Concerning software patents: here's what I really don't understand. Let's suppose that those patents didn't exist. Apple releases the iPhone. There are some close knockoffs, but they're not Apple. And that's actually what happens now... and no one is hurt by it.
Obviously no legitimate company is going to exactly copy Apple, because the copyright and trademark suits would be the end of all that. And yet we still see some really cheap Chinese knockoff attempts, which no one confuses for the real thing. Apple has probably loss less to those sales than to the legal fees on patenting and lawsuits.
So, already, software patents don't work, and it already doesn't matter, so why not eject the whole stinking legal mess altogether? Apple will continue to keep secrets and be Apple, in the same way that a boutique brewery will continue to sell even if the other guy copies an innovative recipe. The individual personalities and company culture -- that is the difference, and no amount of patents will change it for better or worse.
posted by tripping daisy at 5:11 PM on February 6, 2013
Obviously no legitimate company is going to exactly copy Apple, because the copyright and trademark suits would be the end of all that. And yet we still see some really cheap Chinese knockoff attempts, which no one confuses for the real thing. Apple has probably loss less to those sales than to the legal fees on patenting and lawsuits.
So, already, software patents don't work, and it already doesn't matter, so why not eject the whole stinking legal mess altogether? Apple will continue to keep secrets and be Apple, in the same way that a boutique brewery will continue to sell even if the other guy copies an innovative recipe. The individual personalities and company culture -- that is the difference, and no amount of patents will change it for better or worse.
posted by tripping daisy at 5:11 PM on February 6, 2013
There is also a fundamental contradiction between their claims that:
a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person.
I mean, it's either the one of the other. Either the invention is obvious, in which case the skilled person can reproduce it even without the content of the patent, or the skilled person can't reproduce it with the content of the patent, in which case it can't be obvious either. By making both claims simultaneously, B&L overegg their case, and then some.
I don't think is true at all. Most of the tech patent litigation I read about (which is skewing the samples, but that doesn't matter for the purposes of counterpoints) involves a method that is 1. obvious to a skilled person, and 2. a patent so obtuse and obfuscated with legalese that said skilled person would have difficulty even being able to recognize that it applies to the situation without the patent owner claiming it does, let alone be able to decipher the word soup to extract useful information about method in a way that is easier than ignoring the patent completely and just sitting down and replicating the functionality, (quite possibly re-inventing exactly the same method in the process, but who knows, since the patent is all but unreadable to the non-lawyer) let alone have that method be usefully searchable and retrievable from the patent database for people who know what their problem is and are searching the database for solutions to it.
posted by anonymisc at 5:27 PM on February 6, 2013
a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person.
I mean, it's either the one of the other. Either the invention is obvious, in which case the skilled person can reproduce it even without the content of the patent, or the skilled person can't reproduce it with the content of the patent, in which case it can't be obvious either. By making both claims simultaneously, B&L overegg their case, and then some.
I don't think is true at all. Most of the tech patent litigation I read about (which is skewing the samples, but that doesn't matter for the purposes of counterpoints) involves a method that is 1. obvious to a skilled person, and 2. a patent so obtuse and obfuscated with legalese that said skilled person would have difficulty even being able to recognize that it applies to the situation without the patent owner claiming it does, let alone be able to decipher the word soup to extract useful information about method in a way that is easier than ignoring the patent completely and just sitting down and replicating the functionality, (quite possibly re-inventing exactly the same method in the process, but who knows, since the patent is all but unreadable to the non-lawyer) let alone have that method be usefully searchable and retrievable from the patent database for people who know what their problem is and are searching the database for solutions to it.
posted by anonymisc at 5:27 PM on February 6, 2013
In fact, I don't know if I've ever even heard of anyone I work with bothering to try to use patents to figure out how to solve a problem, ever. They're just so abjectly useless for it.
posted by anonymisc at 5:30 PM on February 6, 2013 [2 favorites]
posted by anonymisc at 5:30 PM on February 6, 2013 [2 favorites]
There is also a fundamental contradiction between their claims that:
a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person.
It doesn't seem to me (a layperson) that these are necessarily in contradiction. If, in practice, very abstract disclosures are allowed, couldn't they be both obvious and impossible to reproduce? Or if, in practice, a patent describes an obvious process in technical jargon that obfuscates it to the skilled person, or describes it at a higher or lower level of abstraction than the kind of skilled person likely to invent the thing would normally be working at, would that dodge the contradiction? (Or at least make it a question of how often that kind of thing actually happens?)
I worry about the possibility that I could, while working at one level of abstraction, assemble a set of components that, taken together, infringe a patent described at another level of abstraction. Like "use a database to add different kinds of things to a list while providing an interface for actually doing it" patented at the atomic level, but "defended" at the obvious one. I'm not sure I could build the thing described in that patent, but I could easily build one of the things the patent-holder sued over without a glance at it. (No one seems to know what happened with that case, but the plaintiff is doing fine. What does silence from both the defendants mean?)
I can see how a patent examiner would get irritated with hearing patent law 101 hypotheticals, poorly understood anecdotes, and extreme but rare examples of truly bad patents. It's just hard for me to figure out how common bad patents (or bad side effects of good patents) actually are, or how many there'd have to be to really say the whole system's broken.
jinx
posted by wam at 5:31 PM on February 6, 2013
a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person.
It doesn't seem to me (a layperson) that these are necessarily in contradiction. If, in practice, very abstract disclosures are allowed, couldn't they be both obvious and impossible to reproduce? Or if, in practice, a patent describes an obvious process in technical jargon that obfuscates it to the skilled person, or describes it at a higher or lower level of abstraction than the kind of skilled person likely to invent the thing would normally be working at, would that dodge the contradiction? (Or at least make it a question of how often that kind of thing actually happens?)
I worry about the possibility that I could, while working at one level of abstraction, assemble a set of components that, taken together, infringe a patent described at another level of abstraction. Like "use a database to add different kinds of things to a list while providing an interface for actually doing it" patented at the atomic level, but "defended" at the obvious one. I'm not sure I could build the thing described in that patent, but I could easily build one of the things the patent-holder sued over without a glance at it. (No one seems to know what happened with that case, but the plaintiff is doing fine. What does silence from both the defendants mean?)
I can see how a patent examiner would get irritated with hearing patent law 101 hypotheticals, poorly understood anecdotes, and extreme but rare examples of truly bad patents. It's just hard for me to figure out how common bad patents (or bad side effects of good patents) actually are, or how many there'd have to be to really say the whole system's broken.
jinx
posted by wam at 5:31 PM on February 6, 2013
Most of the tech patent litigation I read about (which is skewing the samples, but that doesn't matter for the purposes of counterpoints) involves a method that is 1. obvious to a skilled person, and 2. a patent so obtuse and obfuscated with legalese that said skilled person would have difficulty even being able to recognize that it applies...
Aren't these two different questions?
As a developer, once a person explains to me why, not how (the 'how' being a matter of running whatever reverse engineering you might need), a problem is solved by a specific piece of code, it becomes obvious to me. This does not mean it would have been obvious to me without the working example (and I do consider myself skilled at software development, so long as UI/UX isn't the specific skill set you're looking for). The definition of "skilled" needs a bit of refinement before I could agree to either side of this debate on software.
As to the second, it seems to imply that a person who is skilled could not at all come up with the solution in the first place. Which can't be, since the purported solution should be implemented. That one sounds like a matter of lawyers doing the job of lawyers rather than an inherent problem in software innovation itself.
For software innovation, I would point to 'swiping down' on a touchscreen to bring up a settings-dependent window on a mobile device as an innovation. Again, not a UI/UX person here, but that would not be an obvious way to do things from my perspective. But Apple did it, and I don't think that should enable me to copy it as a function of my applications just because I can understand both why it's nice and also how to do it.
posted by timfinnie at 5:55 PM on February 6, 2013
Aren't these two different questions?
As a developer, once a person explains to me why, not how (the 'how' being a matter of running whatever reverse engineering you might need), a problem is solved by a specific piece of code, it becomes obvious to me. This does not mean it would have been obvious to me without the working example (and I do consider myself skilled at software development, so long as UI/UX isn't the specific skill set you're looking for). The definition of "skilled" needs a bit of refinement before I could agree to either side of this debate on software.
As to the second, it seems to imply that a person who is skilled could not at all come up with the solution in the first place. Which can't be, since the purported solution should be implemented. That one sounds like a matter of lawyers doing the job of lawyers rather than an inherent problem in software innovation itself.
For software innovation, I would point to 'swiping down' on a touchscreen to bring up a settings-dependent window on a mobile device as an innovation. Again, not a UI/UX person here, but that would not be an obvious way to do things from my perspective. But Apple did it, and I don't think that should enable me to copy it as a function of my applications just because I can understand both why it's nice and also how to do it.
posted by timfinnie at 5:55 PM on February 6, 2013
I agree that those two ideas aren't a contradiction in the case of software patents. For example, take patent 7,962,603, a System and method for identifying individual users accessing a web site. (I stumbled on this because it cites the patent on browser cookies.)
The substance of the newer patent is: "IP addresses aren't reliable and users don't like being tracked by cookies, so let's make browsers select a unique string each time they are opened and use that to identify themselves. And let's have it be the date and time they were last opened."
This is kind of a weird one because I don't believe it actually solves any problem in any useful way. But suppose you lived in a world where it was useful for users to be trackable across sites during a given browser session, but not trackable between sessions. In that event, the solution "let's have the user generate a random string for each session and send it to the websites they visit" would be, well, the only conceivable solution, and would take roughly five seconds to come up with. It would be obvious. (Five seconds later you'd reject the idea of using the date and time as the random string, but never mind that.)
At the same time, there would inevitably be some problems and edge cases and tricky implementation details to deal with. And the patent would provide no guidance whatsoever in solving those. It would, in other words, not allow a skilled person to reproduce the claimed invention without doing the hard part themselves.
So this is how we get to both "obvious" and "not enabling": the patent describes a general approach that would be obvious to anyone faced with the same general problem, but doesn't actually provide any information making it easier to implement that approach. The patent owner then claims ownership of whatever implementation is developed by the next person who has to solve the problem.
posted by jhc at 6:00 PM on February 6, 2013 [1 favorite]
The substance of the newer patent is: "IP addresses aren't reliable and users don't like being tracked by cookies, so let's make browsers select a unique string each time they are opened and use that to identify themselves. And let's have it be the date and time they were last opened."
This is kind of a weird one because I don't believe it actually solves any problem in any useful way. But suppose you lived in a world where it was useful for users to be trackable across sites during a given browser session, but not trackable between sessions. In that event, the solution "let's have the user generate a random string for each session and send it to the websites they visit" would be, well, the only conceivable solution, and would take roughly five seconds to come up with. It would be obvious. (Five seconds later you'd reject the idea of using the date and time as the random string, but never mind that.)
At the same time, there would inevitably be some problems and edge cases and tricky implementation details to deal with. And the patent would provide no guidance whatsoever in solving those. It would, in other words, not allow a skilled person to reproduce the claimed invention without doing the hard part themselves.
So this is how we get to both "obvious" and "not enabling": the patent describes a general approach that would be obvious to anyone faced with the same general problem, but doesn't actually provide any information making it easier to implement that approach. The patent owner then claims ownership of whatever implementation is developed by the next person who has to solve the problem.
posted by jhc at 6:00 PM on February 6, 2013 [1 favorite]
Software patents do seem especially problematic, due to issues related to abstraction and encapsulation. Can you patent a system of X, Y, Z components, in which Component X interacts with Y and Z in a particular way that has a highly abstract utility for solving all sorts of common software engineering problems? Design patterns, for instance, are a kind of highly abstracted blue print for designing code that can be reused to solve certain kinds of recurring problems--a kind of generic design for solving similar kinds of software engineering problems. But it would be kind of ridiculous and counter-productive for people to go around patenting design patterns. So where should/does software patent law draw the line? If the requirement is just that the proposed design have practical, demonstrable real-world applications, and be deployable in some concrete embodiment, then even design patterns would seem to qualify. And yet, that would be sort of like letting people patent the general idea of putting legs on chairs and chairs around a table.
posted by saulgoodman at 6:19 PM on February 6, 2013 [2 favorites]
posted by saulgoodman at 6:19 PM on February 6, 2013 [2 favorites]
The substance of the newer patent is: "IP addresses aren't reliable and users don't like being tracked by cookies, so let's make browsers select a unique string each time they are opened and use that to identify themselves. And let's have it be the date and time they were last opened."
I find your example lacking. Right away I see a reference to using both the IP and time, as in...
I'm not saying that the methods described in the patent are the best known methods of achieving such goals.
posted by timfinnie at 6:21 PM on February 6, 2013
I find your example lacking. Right away I see a reference to using both the IP and time, as in...
A method for identifying distinct users accessing a web site, the method comprising: storing one or more records in a database, wherein each record comprises an Internet address and a time value...and...
The method of claim 1, wherein said Internet address is an Internet Protocol (IP) address.Furthermore, I see the applicability just by using Netflix via XBox Live. In a single Netflix session, my closed captioning setting (I have to use CC) is retained. Across sessions, it is not. The retention of specific user data is obviously not useful to Netflix (though I wish it were), who I would guess assume that my account represents a household and as such does not retain my specific settings from a single session. However, I am not a special snowflake, and I would guess that there are plentiful shared-access systems that benefit from tracking across specific sessions is more useful than tracking across all sessions.
I'm not saying that the methods described in the patent are the best known methods of achieving such goals.
posted by timfinnie at 6:21 PM on February 6, 2013
Patents are a bargain from the public (via their representatives, which seems to be the weak point) that knowledge will be disclosed in return for a monopoly on a particular idea. The premise is that this will benefit the public.
So, it follows, it should be up to the defenders of the patent system to show how the public would benefit versus its absence. Is this patent for doing yadda yadda *on the internet* something that would not have occurred to anyone else over the twenty year life of the patent? If not, the public got screwed.
posted by ChurchHatesTucker at 6:26 PM on February 6, 2013 [2 favorites]
So, it follows, it should be up to the defenders of the patent system to show how the public would benefit versus its absence. Is this patent for doing yadda yadda *on the internet* something that would not have occurred to anyone else over the twenty year life of the patent? If not, the public got screwed.
posted by ChurchHatesTucker at 6:26 PM on February 6, 2013 [2 favorites]
Aren't these two different questions?
No idea what you mean. I am describing (as a counterpoint) the common situation where there is a patent describing a method of doing X, where the patent is of limited or no assistance to a skilled person tasked with developing a method to do X, and developing the method (without reference to the patent) would present no obstacle to that person.
Therefore, there is no inherent conflict between:
"a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person."
posted by anonymisc at 6:41 PM on February 6, 2013
No idea what you mean. I am describing (as a counterpoint) the common situation where there is a patent describing a method of doing X, where the patent is of limited or no assistance to a skilled person tasked with developing a method to do X, and developing the method (without reference to the patent) would present no obstacle to that person.
Therefore, there is no inherent conflict between:
"a) most patents wouldn't allow the skilled person to reproduce the claimed invention;
b) the inventions they claim would have been obvious to the skilled person."
posted by anonymisc at 6:41 PM on February 6, 2013
I am describing...
I understand. But that is a specific set of cases, and I don't think it's 'common'. It is not always true that software patents always describe something the average, skilled, developer could come up with...given that the average person will spend an average amount of time to figure out. Again, knowing the how of a solution is a far cry from the why that makes it matter.
If we're arguing whether software developers' work isn't inherently valuable, and so deserves no protection, because someone else could eventually figure it out, then I'm just going to say that's a bad idea. If we're arguing over which specific implementations represent innovations and advancements, then we're looking at an interminable spiral.
In any case, the point seems to be that anything that could be construed as prior art by a "skilled" person should invalidate a patent. I disagree, for the reason that software developers don't always see the obvious until someone else does it. I'm relying on a great deal of personal experience on that point, and this is as far as I'll carry the matter.
posted by timfinnie at 7:11 PM on February 6, 2013
I understand. But that is a specific set of cases, and I don't think it's 'common'. It is not always true that software patents always describe something the average, skilled, developer could come up with...given that the average person will spend an average amount of time to figure out. Again, knowing the how of a solution is a far cry from the why that makes it matter.
If we're arguing whether software developers' work isn't inherently valuable, and so deserves no protection, because someone else could eventually figure it out, then I'm just going to say that's a bad idea. If we're arguing over which specific implementations represent innovations and advancements, then we're looking at an interminable spiral.
In any case, the point seems to be that anything that could be construed as prior art by a "skilled" person should invalidate a patent. I disagree, for the reason that software developers don't always see the obvious until someone else does it. I'm relying on a great deal of personal experience on that point, and this is as far as I'll carry the matter.
posted by timfinnie at 7:11 PM on February 6, 2013
It seems to me, that in general, many (most?) lawyers see patents as necessary and useful, and many (most?) software developers see them as not. One wonders at a system that purports to spur innovation where the people supposedly being protected are the least interested in participating.
posted by mock at 10:25 PM on February 6, 2013 [3 favorites]
posted by mock at 10:25 PM on February 6, 2013 [3 favorites]
It is not always true that software patents always describe something the average, skilled, developer could come up with...given that the average person will spend an average amount of time to figure out.
Nothing will always be true in every case, but it's a ubiquitous problem with patents. The average person does spend an average amount of time figuring out and implementing a solution to their problem, and then they can get hit with legal threats because some other bozo also spent an average amount of time figuring out a solution to their own (similar) problem. It's not a non-obvious innovation when it's going to be found time and time again simply by means of giving a developer some time to do their job. We solve a dozen things a day that have never been solved before. Does that make our solutions non-obvious and another team would be stumped? No, it more often just means that we happened to be the ones that ran into the problem first, and another team in our shoes would have solved it too.
posted by anonymisc at 10:52 PM on February 6, 2013 [1 favorite]
Nothing will always be true in every case, but it's a ubiquitous problem with patents. The average person does spend an average amount of time figuring out and implementing a solution to their problem, and then they can get hit with legal threats because some other bozo also spent an average amount of time figuring out a solution to their own (similar) problem. It's not a non-obvious innovation when it's going to be found time and time again simply by means of giving a developer some time to do their job. We solve a dozen things a day that have never been solved before. Does that make our solutions non-obvious and another team would be stumped? No, it more often just means that we happened to be the ones that ran into the problem first, and another team in our shoes would have solved it too.
posted by anonymisc at 10:52 PM on February 6, 2013 [1 favorite]
-The case against idea monopolisation
-The patent, used as a sword
-The Problems with Software Patents
-Patent Trolling: It's As Bad As You Think
-Eric Maskin on Patents
-Posner: Do patent and copyright law restrict competition and creativity excessively?
-Posner: Why There Are Too Many Patents in America
-How a rogue appeals court wrecked the patent system
-The Great British Tea Heist: Or How England Stole the Secret, Discovered a Fraud and Created the Modern World
-Thomas Jefferson on Invention and Patents:
also btw...
-Reconsidering Copyright
-Derek Khanna fired by the Republican Study Committee
-How Linus Torvalds Helped Bust a Microsoft Patent
-How Newegg crushed the "shopping cart" patent and saved online retail
-What can we do to put a stop to global warming? "We need to increase government funding for solar, for energy storage, and for electricity transmission tech. And then we need to give the fruits of our research for free to the entire world, before it's too late."
posted by kliuless at 5:32 AM on February 7, 2013 [3 favorites]
-The patent, used as a sword
-The Problems with Software Patents
-Patent Trolling: It's As Bad As You Think
-Eric Maskin on Patents
-Posner: Do patent and copyright law restrict competition and creativity excessively?
-Posner: Why There Are Too Many Patents in America
-How a rogue appeals court wrecked the patent system
-The Great British Tea Heist: Or How England Stole the Secret, Discovered a Fraud and Created the Modern World
-Thomas Jefferson on Invention and Patents:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.-Piracy and Fraud Propelled the U.S. Industrial Revolution: "Although typically glossed over in high-school textbooks, as a young and newly industrializing nation the U.S. aggressively engaged in the kind of intellectual-property theft it now insists other countries prohibit."
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured.
also btw...
-Reconsidering Copyright
-Derek Khanna fired by the Republican Study Committee
-How Linus Torvalds Helped Bust a Microsoft Patent
-How Newegg crushed the "shopping cart" patent and saved online retail
-What can we do to put a stop to global warming? "We need to increase government funding for solar, for energy storage, and for electricity transmission tech. And then we need to give the fruits of our research for free to the entire world, before it's too late."
posted by kliuless at 5:32 AM on February 7, 2013 [3 favorites]
Very interesting links, kliuless, love the Jefferson quote. :)
posted by jeffburdges at 8:58 AM on February 7, 2013
posted by jeffburdges at 8:58 AM on February 7, 2013
Sony Rootkit Redux: Canadian Business Groups Lobby For Right To Install Spyware on Your Computer
posted by jeffburdges at 9:56 AM on February 7, 2013
posted by jeffburdges at 9:56 AM on February 7, 2013
Meanwhile, Patent Troll Says It Owns Podcasting; Sues Adam Carolla, HowStuffWorks.
posted by ChurchHatesTucker at 11:41 AM on February 7, 2013 [1 favorite]
posted by ChurchHatesTucker at 11:41 AM on February 7, 2013 [1 favorite]
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posted by Artw at 7:33 AM on February 6, 2013