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The whole US patent system needs to either be scrapped or rebuilt. The purpose it was originally intended to be used for doesn't make sense in a world where mos

The whole US patent system needs to either be scrapped or rebuilt. The purpose it was originally intended to be used for doesn't make sense in a world where most new technology is just software, and software is incredibly easy to copy and duplicate. Getting a software patent is mostly a matter of sneaking past the people at the USPTO, and making sure you're the first to file. These patent factories could just write code to generate patents all day (maybe start using PyTorch?).

throwaway894345 7y ago
I guess I always assumed this is more or less how it worked everywhere, at least anywhere that respect intellectual property. Is this not the case? What other models are out there, and which ones work better?
- noir_lord 7y ago
  EU doesn't allow software patents. The world hasn't ended so far. https://fsfe.org/campaigns/swpat/swpat.en.html https://fsfe.org/campaigns/swpat/swpat.en.html for a decent overview
  - azinman2 7y ago
    Too be fair, the EU also never managed to build a large scale software industry. I’m not saying this is only because of patents, but it’s not a great example to uphold.
    - TheOtherHobbes 7y ago
      Someone should tell Spotify, SAP, Sage, Nokia, and ARM they're not large scale.
      - azinman2 7y ago
        Compare that to just Bay Area alone or one Alibaba and then tell me about large scale...
  - easytiger 7y ago
    The EU once upon a time was aggressively trying to implement them but they were canned by members . It's only a matter of time I feel before it is attempted again
  - Ace17 7y ago
    In practice, EU already does allow them. The software invention just needs to be disguised as a machine. Industrial property lawyers know very well how to do that and it's unfortunately very common.
chrisseaton 7y ago
> where most new technology is just software Is this really true?
- brenden2 7y ago
  Yep. Just look at the top 10 companies by market cap: 1. Microsoft – mostly software 2. Apple – software and hardware 3. Amazon – mostly software 4. Alphabet – mostly software 5. Berkshire Hathaway – not tech 6. Facebook – mostly software 7. Alibaba – mostly software 8. Tencent – mostly software 9. Johnson & Johnson – not tech 10. Visa – not tech, but mostly software
  - chrisseaton 7y ago
    I'm not sure company value can really tell you what the volume of new tech is. Does a company like Facebook really develop new tech, or just apply it? They don't produce that many papers, compared to even a small university department. How are you even measuring the volume of new tech? What is one new composite material compared to one new JavaScript framework? How do you compare those?
    - w1nk 7y ago
      I don't believe the claim of their publishing rate is accurate. They published over 300 papers last year according to the research website (https://research.fb.com/publications/?dateYear=2019 https://research.fb.com/publications/?dateYear=2019). Is a small university department really producing more than a paper per working day?
  - jbay808 7y ago
    Can you justify the claim that Amazon is mostly software? Is it because they hire a lot of well-paid software developers? Microsoft produces a lot of value from software, but how much new technology are they producing? Some for sure, but how much? I don't think your metrics prove the claim... Facebook has developed a software product, and earned a lot of value from advertising. They've also developed several new technologies along the way, but I'm not sure their advertising revenue or market cap are good trackers of their R&D output. Software products obviously scale very well, which makes them very valuable. But are you counting new technologies in terms of dollars earned? That's very different than just the number of innovations, because it depends on the size of the market for them, your capacity to exploit it, etc.
JackFr 7y ago
At the same time AirBNB has history, that is to say, a business model, based on ignoring laws they don't care for.
- brenden2 7y ago
  As a former employee, I don't agree with that. I know it's the prevailing sentiment on HN, but it's not the truth.
  - freejazz 7y ago
    You could give us a reason why
    - holtalanm 7y ago
      not that I'm agreeing, but doesn't the burden of truth lie with the one who made the original claim about AirBnb not caring about laws historically?
      - freejazz 7y ago
        Right, but given that AirBnB listed illegal hotels and fought local governments in taking them down, it is fair to say they do not have regard for the law. Further, it is clear that a significant portion of their business relied upon such listings.
        Giorgi 7y ago
        >fought local governments in taking them down Good. If law is stupid company must defend it's interest and at the same time - hard earning hosts too. I don't see which law is being broken if those are fought in court.
  - jascii 7y ago
    That is a common sentiment. I would be interested to hearing some counter arguments, that might be more productive then just saying it's not true.
pslam 7y ago
> The purpose it was originally intended to be used for doesn't make sense in a world where most new technology is just software, and software is incredibly easy to copy and duplicate. The very first patent was to duplicate an existing process (the loom) and have a monopoly to produce it. I keep hearing this argument from patent proponents, but patents have never in their history been ostensibly for good.
- freejazz 7y ago
  The Constitution requires that Congress setup laws for both copyright and patent, for the good of the nation. Patents were always intended for the overall wellbeing of the nation. That's not to say that is what has always been achieved by the patent system, but it's not some sort of conspiracy. If anything, in history, they were always OSTENSIBLY for good, but perhaps ACTUALLY bad. So I find your statement to be A) historically and factually inaccurate B) literally incorrect given your usage of ostensibly.
  - MegaButts 7y ago
    > The Constitution requires that Congress setup laws for both copyright and patent No it doesn't, it grants them the power but it doesn't specify they have to do it. “The Congress shall have 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….” There is a big difference between having a power and being forced to use it.
    - freejazz 7y ago
      I don't think that's a great reading of congress' enumerated powers. The shall refers to the powers being powers that can be used when appropriate, to achieve the intended goal of the power. Must language, here, would imply a constant duty to use each power. My reading is that Congress has an OBLIGATION to promote the arts and sciences, and has the power to use copyright and patent law to achieve those goals as congress sees fit.
darepublic 7y ago
I agree and stories like this make the blood boil. You have a good idea though, lets create machine learning to create patent generators, and automate the submission of those patents. Then lets use ML to draft potential patent lawsuits with the patents we automatically generated.
riazrizvi 7y ago
I think it is working exactly as intended. The point of the USPTO is to provide a mechanism for carving up the universe of ideas into plots of land where ownership is clear and backed up by the force of the state. You can charge rent on it, you can develop it yourself, you can leave it idle, it’s yours. Software innovators are a bit like wholesome farmers who just want to labor in the fields, beat the elements and grow good crops to feed the people for a decent profit. That’s nice, but in a country without property law big mean farming operations with security staff will just come and park themselves where you were farming. The problem I believe, is that software innovators are taught not to worry about patents. Perhaps this attitude helps the VC shops who are experts at it, and it gives them an information advantage. I don’t know who feeds the myth. In a right-thinking world, we would look at this situation and say Airbnb just started farming on land that was unclearly owned. This is the natural consequence.
- choward 7y ago
  Your analogy makes no sense. Land is a scarce and finite resource. Land ownership is a zero sum game. Patents are arbitrary and there can be an infinite number of them. You don't need patents to build software but you need land for crops.
  - freejazz 7y ago
    It's not a "perfect" analogy, but what ever are? The patent is the land, not the crop. The products that can be produced with the patent are the crops, with which it is impossible to have without the patent. Think of it this way, you spend years cracking a new invention. You bring it to market. You immediately go out of business because a larger company takes your invention and sells it at half the price you can because they don't need to recoup your R&D costs. Without patents you cannot protect against this circumstance. Trade secrets don't protect against this because trade secrets don't protect against reverse-engineering whereas patents do. Patents are a temporary monopoly. Trade secrets can last indefinitely. Patents have a relatively short lifetime, though people do argue one still too-long for software.
    - 7y ago
patentatt 7y ago
Why is a software engineer’s work product any less important than a mechanical engineer’s or an electrical engineer’s?
- jlokier 7y ago
  It's not less important. It is important. That's why software engineers want to be allowed to do their work without a silly patent system blocking their work. Software is a medium in which patentable "inventions" come naturally to software engineers at a very high rate, often the same ideas as each other in response to the same problems. (This suggests they aren't really rare insights at all and shouldn't be patentable, but the standard is too low for that.) Sometimes tens or hundreds of patent-grade "inventions" a week for a great software engineer. It isn't even possible for a great software engineer to know if what they are writing infringes on patents, existing or pending. It's just too difficult because of the high rate of duplicate "inventions" that come naturally. Mechanical and electrical engineers also have great ideas and are blocked by patents. But the rate at which new, patentable ideas come to individuals in those fields seems to be lower, perhaps because it takes longer to actually make things, perhaps other reasons. Maybe even just because there are so many software engineers that duplication is unavoidable.
- waffle_ss 7y ago
  Because code is math, and patenting math is nonsensical. Should Maxwell have been able to patent his equations? The question is ill-formed.
keithnz 7y ago
In New Zealand we got rid of software patents
matheusmoreira 7y ago
The entire concept of intellectual property must be abolished. The notion that people can own information is incompatible with the 21st century.

throwaway894345 7y ago

I guess I always assumed this is more or less how it worked everywhere, at least anywhere that respect intellectual property. Is this not the case? What other models are out there, and which ones work better?

noir_lord 7y ago
EU doesn't allow software patents. The world hasn't ended so far. https://fsfe.org/campaigns/swpat/swpat.en.html https://fsfe.org/campaigns/swpat/swpat.en.html for a decent overview
- azinman2 7y ago
  Too be fair, the EU also never managed to build a large scale software industry. I’m not saying this is only because of patents, but it’s not a great example to uphold.
  - TheOtherHobbes 7y ago
    Someone should tell Spotify, SAP, Sage, Nokia, and ARM they're not large scale.
    - azinman2 7y ago
      Compare that to just Bay Area alone or one Alibaba and then tell me about large scale...
- easytiger 7y ago
  The EU once upon a time was aggressively trying to implement them but they were canned by members . It's only a matter of time I feel before it is attempted again
- Ace17 7y ago
  In practice, EU already does allow them. The software invention just needs to be disguised as a machine. Industrial property lawyers know very well how to do that and it's unfortunately very common.

chrisseaton 7y ago

> where most new technology is just software Is this really true?

brenden2 7y ago
Yep. Just look at the top 10 companies by market cap: 1. Microsoft – mostly software 2. Apple – software and hardware 3. Amazon – mostly software 4. Alphabet – mostly software 5. Berkshire Hathaway – not tech 6. Facebook – mostly software 7. Alibaba – mostly software 8. Tencent – mostly software 9. Johnson & Johnson – not tech 10. Visa – not tech, but mostly software
- chrisseaton 7y ago
  I'm not sure company value can really tell you what the volume of new tech is. Does a company like Facebook really develop new tech, or just apply it? They don't produce that many papers, compared to even a small university department. How are you even measuring the volume of new tech? What is one new composite material compared to one new JavaScript framework? How do you compare those?
  - w1nk 7y ago
    I don't believe the claim of their publishing rate is accurate. They published over 300 papers last year according to the research website (https://research.fb.com/publications/?dateYear=2019 https://research.fb.com/publications/?dateYear=2019). Is a small university department really producing more than a paper per working day?
- jbay808 7y ago
  Can you justify the claim that Amazon is mostly software? Is it because they hire a lot of well-paid software developers? Microsoft produces a lot of value from software, but how much new technology are they producing? Some for sure, but how much? I don't think your metrics prove the claim... Facebook has developed a software product, and earned a lot of value from advertising. They've also developed several new technologies along the way, but I'm not sure their advertising revenue or market cap are good trackers of their R&D output. Software products obviously scale very well, which makes them very valuable. But are you counting new technologies in terms of dollars earned? That's very different than just the number of innovations, because it depends on the size of the market for them, your capacity to exploit it, etc.

JackFr 7y ago

At the same time AirBNB has history, that is to say, a business model, based on ignoring laws they don't care for.

brenden2 7y ago
As a former employee, I don't agree with that. I know it's the prevailing sentiment on HN, but it's not the truth.
- freejazz 7y ago
  You could give us a reason why
  - holtalanm 7y ago
    not that I'm agreeing, but doesn't the burden of truth lie with the one who made the original claim about AirBnb not caring about laws historically?
    - freejazz 7y ago
      Right, but given that AirBnB listed illegal hotels and fought local governments in taking them down, it is fair to say they do not have regard for the law. Further, it is clear that a significant portion of their business relied upon such listings.
      - Giorgi 7y ago
        >fought local governments in taking them down Good. If law is stupid company must defend it's interest and at the same time - hard earning hosts too. I don't see which law is being broken if those are fought in court.
- jascii 7y ago
  That is a common sentiment. I would be interested to hearing some counter arguments, that might be more productive then just saying it's not true.

pslam 7y ago

> The purpose it was originally intended to be used for doesn't make sense in a world where most new technology is just software, and software is incredibly easy to copy and duplicate. The very first patent was to duplicate an existing process (the loom) and have a monopoly to produce it. I keep hearing this argument from patent proponents, but patents have never in their history been ostensibly for good.

freejazz 7y ago
The Constitution requires that Congress setup laws for both copyright and patent, for the good of the nation. Patents were always intended for the overall wellbeing of the nation. That's not to say that is what has always been achieved by the patent system, but it's not some sort of conspiracy. If anything, in history, they were always OSTENSIBLY for good, but perhaps ACTUALLY bad. So I find your statement to be A) historically and factually inaccurate B) literally incorrect given your usage of ostensibly.
- MegaButts 7y ago
  > The Constitution requires that Congress setup laws for both copyright and patent No it doesn't, it grants them the power but it doesn't specify they have to do it. “The Congress shall have 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….” There is a big difference between having a power and being forced to use it.
  - freejazz 7y ago
    I don't think that's a great reading of congress' enumerated powers. The shall refers to the powers being powers that can be used when appropriate, to achieve the intended goal of the power. Must language, here, would imply a constant duty to use each power. My reading is that Congress has an OBLIGATION to promote the arts and sciences, and has the power to use copyright and patent law to achieve those goals as congress sees fit.

darepublic 7y ago

I agree and stories like this make the blood boil. You have a good idea though, lets create machine learning to create patent generators, and automate the submission of those patents. Then lets use ML to draft potential patent lawsuits with the patents we automatically generated.

riazrizvi 7y ago

I think it is working exactly as intended. The point of the USPTO is to provide a mechanism for carving up the universe of ideas into plots of land where ownership is clear and backed up by the force of the state. You can charge rent on it, you can develop it yourself, you can leave it idle, it’s yours. Software innovators are a bit like wholesome farmers who just want to labor in the fields, beat the elements and grow good crops to feed the people for a decent profit. That’s nice, but in a country without property law big mean farming operations with security staff will just come and park themselves where you were farming. The problem I believe, is that software innovators are taught not to worry about patents. Perhaps this attitude helps the VC shops who are experts at it, and it gives them an information advantage. I don’t know who feeds the myth. In a right-thinking world, we would look at this situation and say Airbnb just started farming on land that was unclearly owned. This is the natural consequence.

choward 7y ago
Your analogy makes no sense. Land is a scarce and finite resource. Land ownership is a zero sum game. Patents are arbitrary and there can be an infinite number of them. You don't need patents to build software but you need land for crops.
- freejazz 7y ago
  It's not a "perfect" analogy, but what ever are? The patent is the land, not the crop. The products that can be produced with the patent are the crops, with which it is impossible to have without the patent. Think of it this way, you spend years cracking a new invention. You bring it to market. You immediately go out of business because a larger company takes your invention and sells it at half the price you can because they don't need to recoup your R&D costs. Without patents you cannot protect against this circumstance. Trade secrets don't protect against this because trade secrets don't protect against reverse-engineering whereas patents do. Patents are a temporary monopoly. Trade secrets can last indefinitely. Patents have a relatively short lifetime, though people do argue one still too-long for software.
  - 7y ago

patentatt 7y ago

Why is a software engineer’s work product any less important than a mechanical engineer’s or an electrical engineer’s?

jlokier 7y ago
It's not less important. It is important. That's why software engineers want to be allowed to do their work without a silly patent system blocking their work. Software is a medium in which patentable "inventions" come naturally to software engineers at a very high rate, often the same ideas as each other in response to the same problems. (This suggests they aren't really rare insights at all and shouldn't be patentable, but the standard is too low for that.) Sometimes tens or hundreds of patent-grade "inventions" a week for a great software engineer. It isn't even possible for a great software engineer to know if what they are writing infringes on patents, existing or pending. It's just too difficult because of the high rate of duplicate "inventions" that come naturally. Mechanical and electrical engineers also have great ideas and are blocked by patents. But the rate at which new, patentable ideas come to individuals in those fields seems to be lower, perhaps because it takes longer to actually make things, perhaps other reasons. Maybe even just because there are so many software engineers that duplication is unavoidable.
waffle_ss 7y ago
Because code is math, and patenting math is nonsensical. Should Maxwell have been able to patent his equations? The question is ill-formed.

keithnz 7y ago

In New Zealand we got rid of software patents

matheusmoreira 7y ago

The entire concept of intellectual property must be abolished. The notion that people can own information is incompatible with the 21st century.