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US patent law (as well as copyright law) derives from Article I section 8 of the Constitution which grants Congress the power "To promote the Progress of Scienc

by tgflynn 16y ago

US patent law (as well as copyright law) derives from Article I section 8 of the Constitution which grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The question is do patents actually promote the progress of science and technology ? I suspect that they do not because while they create additional monetary incentives to pursue innovation at the same time they restrict the free flow of ideas which is the driving force behind scientific and technical progress. The free exchange and use of information is probably the source of the exponential progress in "information technologies" that Ray Kurzweil has discovered. It seems likely that impediments to the exchange and use of information, such as patents, can only reduce the rate of exponential growth. Perhaps if patents had never existed our technology would be far more advanced than it currently is. If it were ever possible to prove conclusively that patents impede rather than promote progress, they would become unconstitutional in the US.

EGreg 16y ago
Agreed, however there is something to be said about giving incentives to the little guy. Basically what entrepreneurs who are just starting out think NDAs should do, but better. Say you come up with a great new idea in software. And you want to make an agreement with someone to implement this idea. Without patents, they can have "their uncle's company in China" to do the idea (think CrunchPad), rename it to avoid any trademark issues, and screw you. How would you protect against this? This issue faces almost every inventor of an idea, as they will have to make business agreements with someone. Thus, although you would be encouraging free flow of information within the tree, you would be cutting off a large source of it -- individual inventors. Patents won't be going away because it's hard to distinguish between the above example, and a patent troll.
- tgflynn 16y ago
  Yes, I've often heard this argument. Personally, speaking as a "little guy' who is interested in advancing technology and making a good living doing it, I am far more worried that some corporation will be able to claim patent "protection" over my ideas. This seems far more probable to me than the inverse situation of someone else independently discovering my invention and beating me in the market. Also even if that happened I'd much rather compete in the market than in a court room. As for the specific case you mention, I think, especially in software, that it's becoming far easier for an individual inventor to take his invention to market rather than needing to sell it to a large corporation. Also this argument seems largely based on the notion, which I think is most often incorrect, that most value lies in a simple idea rather than in the execution of that idea. In other words that you have some idea that can be stated in a few English sentences that has tremendous value and that no one else has thought of. You only need divulge that idea and anyone on the planet will be able to beat you in the market. Such ideas, if they exist at all, are exceedingly rare, maybe once in a generation occurrences. All recent examples of highly successful innovation: Microsoft, Google, Facebook relied far more on the quality of execution - the construction of solutions from many small ideas - than on one overarching genius discovery. And it is exactly this form of value creation which patents impede.
  - EGreg 16y ago
    Well, it's hard to distinguish where to draw the line between a good faith attempt to execute an idea -- failing because a competitor outright copied it in 2 days, and patent trolling. That's why unless we figure out how to distinguish this effectively, either patents get abolished in software or they persist. Personally I did invent something that's relatively easy to copy. How would a big company ever agree to buy what I made when they can just copy it?
    - tgflynn 16y ago
      Let's look at your first example, the attempt doesn't need to fail just because someone copied it in 2 days. Let's say I come up with a great new idea for a smartphone app. It's actually an easy idea to implement, but having the idea in the first place wasn't necessarily obvious. Once I launch my app other developers can copy it quite easily. But that doesn't mean my market share goes to zero. I'll still have a first to market advantage and I can compete on features and quality with my competitors. I should still be able to make a reasonable income from my app, an income that's related to how well I've implemented and marketed it. It's true I won't get much of a wind fall for having had the initial flash of inspiration, but that seems pretty fair to me. Anyone could have had that idea, I was just lucky enough to have had it first, and I probably didn't do a large amount of actual work to come up with it, so why should I have a monopoly on it ? As for your second example, where you're trying to sell your idea to a company, I wonder if you aren't overestimating the amount of protection the patent will give you ? Are you considering the asymmetry in legal resources between yourself and the company ? There are many grounds for finding software patents invalid and if the idea is valuable enough, the corporation may well litigate you all the way to the Supreme Court. Do you have the resources for that ?
      - EGreg 16y ago
        In the first example, who cares that you are able to get 2-3 thousand users, eventually facebook comes out with it and launches to 500 million users simultaneously, you are unable to advance, and your 2-3k eventually go away.
HeyLaughingBoy 16y ago
How do you think patents "restrict the free flow of ideas?" A patent must publicize what is being claimed: you are given a explanation of the design or process. You just can't make it and sell it. However, by knowing someone's design, even when patented, it can inspire someone else to build something even better.
- tgflynn 16y ago
  Well they clearly restrict the free use of ideas. An idea that I can't use is of limited interest to me. Have you ever read a software patent ? The ones I have seen have been written in a very strange way (ie use of non-standard terminology for technical concepts) which seems aimed at obscuring the nature of the ideas being patented rather than clarifying them. If patent descriptions were really intended to convey useful technical information they would read more like journal articles rather than some strange dialect of American legalese. I'm sure that some innovation occurs through efforts to work around existing patents however I doubt that effect comes close to matching their effect of preventing ideas, even if independently discovered, from being incorporated into new technical solutions. As for the notion that people are going to read 20 year old expired patents for their ideas that seems pretty unlikely to me given the pace of technological development.

by tgflynn 16y ago

EGreg 16y ago

Agreed, however there is something to be said about giving incentives to the little guy. Basically what entrepreneurs who are just starting out think NDAs should do, but better. Say you come up with a great new idea in software. And you want to make an agreement with someone to implement this idea. Without patents, they can have "their uncle's company in China" to do the idea (think CrunchPad), rename it to avoid any trademark issues, and screw you. How would you protect against this? This issue faces almost every inventor of an idea, as they will have to make business agreements with someone. Thus, although you would be encouraging free flow of information within the tree, you would be cutting off a large source of it -- individual inventors. Patents won't be going away because it's hard to distinguish between the above example, and a patent troll.

tgflynn 16y ago
Yes, I've often heard this argument. Personally, speaking as a "little guy' who is interested in advancing technology and making a good living doing it, I am far more worried that some corporation will be able to claim patent "protection" over my ideas. This seems far more probable to me than the inverse situation of someone else independently discovering my invention and beating me in the market. Also even if that happened I'd much rather compete in the market than in a court room. As for the specific case you mention, I think, especially in software, that it's becoming far easier for an individual inventor to take his invention to market rather than needing to sell it to a large corporation. Also this argument seems largely based on the notion, which I think is most often incorrect, that most value lies in a simple idea rather than in the execution of that idea. In other words that you have some idea that can be stated in a few English sentences that has tremendous value and that no one else has thought of. You only need divulge that idea and anyone on the planet will be able to beat you in the market. Such ideas, if they exist at all, are exceedingly rare, maybe once in a generation occurrences. All recent examples of highly successful innovation: Microsoft, Google, Facebook relied far more on the quality of execution - the construction of solutions from many small ideas - than on one overarching genius discovery. And it is exactly this form of value creation which patents impede.
- EGreg 16y ago
  Well, it's hard to distinguish where to draw the line between a good faith attempt to execute an idea -- failing because a competitor outright copied it in 2 days, and patent trolling. That's why unless we figure out how to distinguish this effectively, either patents get abolished in software or they persist. Personally I did invent something that's relatively easy to copy. How would a big company ever agree to buy what I made when they can just copy it?
  - tgflynn 16y ago
    Let's look at your first example, the attempt doesn't need to fail just because someone copied it in 2 days. Let's say I come up with a great new idea for a smartphone app. It's actually an easy idea to implement, but having the idea in the first place wasn't necessarily obvious. Once I launch my app other developers can copy it quite easily. But that doesn't mean my market share goes to zero. I'll still have a first to market advantage and I can compete on features and quality with my competitors. I should still be able to make a reasonable income from my app, an income that's related to how well I've implemented and marketed it. It's true I won't get much of a wind fall for having had the initial flash of inspiration, but that seems pretty fair to me. Anyone could have had that idea, I was just lucky enough to have had it first, and I probably didn't do a large amount of actual work to come up with it, so why should I have a monopoly on it ? As for your second example, where you're trying to sell your idea to a company, I wonder if you aren't overestimating the amount of protection the patent will give you ? Are you considering the asymmetry in legal resources between yourself and the company ? There are many grounds for finding software patents invalid and if the idea is valuable enough, the corporation may well litigate you all the way to the Supreme Court. Do you have the resources for that ?
    - EGreg 16y ago
      In the first example, who cares that you are able to get 2-3 thousand users, eventually facebook comes out with it and launches to 500 million users simultaneously, you are unable to advance, and your 2-3k eventually go away.

HeyLaughingBoy 16y ago

How do you think patents "restrict the free flow of ideas?" A patent must publicize what is being claimed: you are given a explanation of the design or process. You just can't make it and sell it. However, by knowing someone's design, even when patented, it can inspire someone else to build something even better.

tgflynn 16y ago
Well they clearly restrict the free use of ideas. An idea that I can't use is of limited interest to me. Have you ever read a software patent ? The ones I have seen have been written in a very strange way (ie use of non-standard terminology for technical concepts) which seems aimed at obscuring the nature of the ideas being patented rather than clarifying them. If patent descriptions were really intended to convey useful technical information they would read more like journal articles rather than some strange dialect of American legalese. I'm sure that some innovation occurs through efforts to work around existing patents however I doubt that effect comes close to matching their effect of preventing ideas, even if independently discovered, from being incorporated into new technical solutions. As for the notion that people are going to read 20 year old expired patents for their ideas that seems pretty unlikely to me given the pace of technological development.