9 ms·

Are Software Patents Evil? (2006)

74 points by joejohnson 15y ago

sedev 15y ago
I wonder whether the recommendation at the very end, about starving patent trolls of lawyer resources, is more or less viable now than it was five years ago. Although there are certainly plenty of megafirms, I'm not sure that the legal world is coherent enough for that to be a great strategy. Plus you need maybe two full-time lawyers and twice that many paralegals to operate on the Lodsys level of suing smaller developers and working your way up. Patent trolls, like terrorists, take advantage of asymmetric resource usage. So trying to attack their supply of lawyer resources might not work.
- nextparadigms 15y ago
  I wonder if this would really work: http://jeremy.tregunna.ca/articles/2011-07-28/fight_software_patents_with_patents_its_not_what_you_think_honest http://jeremy.tregunna.ca/articles/2011-07-28/fight_software...
aidenn0 15y ago
"When a company starts fighting over IP, it's a sign they've lost the real battle, for users." What does this say about Apple's lawsuits?
- nextparadigms 15y ago
  Pretty much the same thing. Notice how they're going after the most successful Android manufacturers?
  - aidenn0 15y ago
    So when should I short Apple?
    - Goladus 15y ago
      When they start losing all their battles instead of just a few.
- monochromatic 15y ago
  That's an interesting line from pg, but I think it's a little overbroad. There are a whole host of reasons a company might start fighting over IP. Sometimes it's a bad sign, but not always by any means.
  - pg 15y ago
    Yes, Apple shows you're right. I wouldn't be surprised if the cause in their case is that Steve is personally angry at having his stuff copied.
seles 15y ago
"Patent trolls are hard to fight precisely because they create nothing. Big companies are safe from being sued by other big companies because they can threaten a counter-suit. But because patent trolls don't make anything, there's nothing they can be sued for." This is a very good point and part of the problem. But there is a loop hole for big companies, that I can't help but wonder if it has even been used. A big company could, possibly under the table, use a small company to sue another big company, leaving no way for the sued to fight back.
- groby_b 15y ago
  Isn't that what Nathan Myrvolds (sp?) company does? Create a bunch of shell companies, sell them a patent with a "backend" deal. Worst case, the shell company is dead.
- groby_b 15y ago
  Isn't that what Nathan Myrvolds (sp?) company does? Create a bunch of shell companies, sell them a patent with a "backend" deal. Worst case, the shell company is dead.
- onemoreact 15y ago
  Shell companies have limited value in this case. Because if Microsoft uses XYZ corp to sue IBM then IBM can just sue Microsoft again and again.
  - seles 15y ago
    Only if IBM knows Microsoft is using XYZ
    - ghshephard 15y ago
      Isn't this somewhat simliar to how Microsoft funded SCO to sue companies that used Linux? Microsoft didn't want to be in the position of suing their customers, so they used SCO as a shell to do their dirty work for them.
petegrif 15y ago
"One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general." This is possibly the most important statement in the piece.
- ramidarigaz 15y ago
  I dunno. "Hardware" patents allow for people to design something that would require millions of dollars of manufacturing equipment, and still get paid. I think the point of hardware patents is to allow the inventor to license that technology out to companies that have the capability to manufacture the hardware. Software patents don't have anything like that. All it takes for someone to implement a piece of software is a cheap laptop and time. Everyone can write software (or rather, everyone has the financial capability to do so).
  - jebblue 15y ago
    Time and talent are everything. Have you ever patented anything?
- MrVitaliy 15y ago
  I would argue that patent term should be roughly proportional to the time it takes to build something useful with it. Now, I know this is a giant black hole defined by "useful" but consider this: it takes much less resources (time and money) to go from patent to product in software than in chemistry or airplane engine. Having a software patent term of 5 years is enough to have a leading product in competition even with software giants like IBM(start-ups are a good evidence of that). While the normal 20 year term for non-software patent, which certainly requires more time and money to have an upper hand vs big companies in already similar markets, should be left as it is. Perhaps there are other industries where, for the grater good of human kind, they can apply some limit function on patent term, say Pharmaceutics.
- biehl 15y ago
  Yes. And it is wrong. The economics of production of hardware/things is (still) fundamentally different from the production of digital copies. And that is why it makes good sense to be squarely against software patents and be indifferent about hardware patents.
sukuriant 15y ago
Would we as a culture be so up-in-arms about patents if they lasted ... 3-5 years in the CS industry/any-other-ethereal industry?
- brlewis 15y ago
  No, we would be about 1/4th as up in arms as we are now.
ghshephard 15y ago
A previous General Counsel of ours divided the community of IP lawyers into two categories - those who work hard to build companies, protect created intellectual property, and the other category - the attorneys who do the opposite - destroy companies and leech off wealth. He referred to those attorneys who do work for Patent Trolls at an all hands meeting as "bottom feeding lowlifes". I sometimes wonder how miserable Patent Attorneys who end up working for patent trolls must feel about themselves, or whether they've kidded themselves into believing they aren't part of the problem. Or whether they are just paid so much money they don't care.
- bfe 15y ago
  I know one active patent troll who is also a patent attorney, who wrote and prosecuted his own patent application and now writes his own threatening letters and licenses to the patent, has made a lot of money from it, and shows only delight at the money. He also still works for his law firm, and spends part of his time doing patent work for outside clients. I've long wondered how the rest of his firm felt about that.
s8qnze982y 15y ago
>> Frankly, it surprises me how small a role patents play in the software business. It's kind of ironic, considering all the dire things experts say about software patents stifling innovation, but when one looks closely at the software business, the most striking thing is how little patents seem to matter. This is not true any more. At least some developers withdrew from the US market because of patents fear (specifically, mobile app developers) - this is a business changing phenomenon.
- monochromatic 15y ago
  Who?
  - s8qnze982y 15y ago
    http://www.guardian.co.uk/technology/appsblog/2011/jul/15/app-developers-withdraw-us-patents http://www.guardian.co.uk/technology/appsblog/2011/jul/15/ap...
saturdaysaint 15y ago
The secrecy section is interesting. The new web vanguard (thinking of Google and Facebook primarily) is motivated to shrug off, if not outright undermine, the patent system precisely because many of their most valuable assets are hidden and very difficult to reverse engineer, let alone patent. Their main assets aren't user-facing features or UI conventions - they're distinguished by hidden stores of data and advanced algorithms and tools for which few of their employees have complete source code access.
- bfe 15y ago
  This is a great point and I've seen it in action many times among clients - calculating whether to apply for a patent on a new idea or to protect it as a trade secret. In cases where the value is mainly in inaccessible firmware or a manufacturing process where it would be hard for someone to reverse engineer, and even harder to detect if someone did manage to copy it, they typically set up procedures to keep it as a trade secret. The other side to this, that I've seen among clients, is they really do often make decisions whether to devote money to developing a technology based on the expectation of whether they'll be able to patent it.
Peaker 15y ago
A difference between software patents and other patents that pg is missing, is that a piece of software is always a composition of thousands of (patentable) ideas. A non-software product is typically a composition of 0-10 (patentable) ideas. That means that the odds of any hardware product of accidentally hitting or being encumbered by a patent are nearly nil. The odds of a software project of not hitting any patent are nearly nil. This difference is circumstantial and not a fundamental property of things -- but a very important one.
- yagibear 15y ago
  Non-software products are quite complicated once you look beneath the surface, e.g. even a cheap toaster has 400 parts http://www.ted.com/talks/thomas_thwaites_how_i_built_a_toaster_from_scratch.html http://www.ted.com/talks/thomas_thwaites_how_i_built_a_toast... . Sure, the number of distinct parts would be lower (perhaps 100), they tend to involve more mature technology for which any patents might have now expired, and the toaster manufacturer probably buys many of the parts rather than manufacturing them themselves, but I would think that the odds of an advanced hardware product accidentally hitting a patent are significantly more than nil.
ghshephard 15y ago
Some Drug Patents cost the companies who discovered them hundreds of millions, and in some cases billions of dollars. The period of time might stretch over decades, require hundreds of researchers, and involved thousands and thousands of wrong turns. These drugs will never be created by private enterprise without the monopoly protection of a patent - so we either forego future development of those drugs, or socialize the process. On the flip side, I find it hard to put Drug Patents into the same category as a software patent that three engineers with a half-formed idea can sketch out in a period of a couple days, and then finish off with two or three round trips to the patent office. I (and this is where I probably disagree with Stallman) think that truly, truly innovative algorithms, such as public key encryption, should be greatly rewarded for a limited time as a result of being shared with everyone. But - "One Click Purchase" - a process that any high school student with knowledge of cookies could have invented in under 45 minutes if asked to, does not meet that bar. So - put me in the "For non-obvious patents" column.
- Tichy 15y ago
  I have heard that drug companies actually lobby for the government to make drug discovery that expensive, as it keeps competitors at bay. Might just be a rumor, but still...
- rdl 15y ago
  I think a lot of the reason drug discovery and development takes so long, and requires patents to maintain commercial viability, is the government/FDA imposed regulatory requirement. While the basic research isn't included, it's not really the kind of stuff a drug company copies from another drug company, either -- the more product-specific discovery and development happens over a shorter time window, then you get ~10 years of clinical trials. The biggest risk if there weren't IP protection would be someone copying you during the clinical trial phase -- before you can sell it, but after most of the risk is eliminated (and money has been spent). If we think the FDA is overall worthwhile (I think some kind of testing is key, but it could be more done by insurers for efficacy with the FDA focusing on safety, but the current system isn't horrible), I'd be willing to allow patents in that specific case, to compensate for the regulation. There is not anywhere near as much societal benefit to third-party audited testing of one click or business process, so trade secret remains possible for a lot longer (at least until the product is fielded), at which point first mover advantage and constant innovation should be at least partially effective in compensating the inventor.
podperson 15y ago
"One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general." I'm glad he says this because it's an important point. You can't stop software patents without stopping patents altogether, and that means Intel can't protect massive investments in new techniques for creating faster CPUs without deliberately obfuscating its hardware, etc. etc. etc. Kill patents and we're in for a world of reverse-threaded screws, gadgets filled with glue, and on and on.
- vacri 15y ago
  So instead of killing them altogether, give them a limited lifespan - 5 or 7 years.
- brlewis 15y ago
  For many years US software patents were stopped without stopping patents altogether. And the law is the same now as it was then, as I just detailed in an essay: http://ourdoings.com/ourdoings-startup/2011-07-28 http://ourdoings.com/ourdoings-startup/2011-07-28 Feel free to submit the essay to HN if you think it clears things up. EDIT: Timothy Lee pointed to his article from a couple years ago that covers the same topic in more detail: http://arstechnica.com/tech-policy/news/2009/01/resurrecting-the-supreme-courts-software-patent-ban-not-ready.ars http://arstechnica.com/tech-policy/news/2009/01/resurrecting...
- akeefer 15y ago
  That's totally incorrect. Why can't you draw the line at software? Books aren't patentable. Music isn't patentable. Paintings aren't patentable. Mathematical formulas aren't patentable. So why is it that you have to be against patents in general just because you're against software patents? Patentability is one method of protection out of many that can be applied, and it's been applied to particular kinds of "inventions" and not to others for hundreds of years. Software is protected by copyright and trade secret protections, so even without patents it will always be intellectual property that is strongly protected and which has material value.
  - brlewis 15y ago
rubinelli 15y ago
An interesting idea than cropped up in another thread was taxing IP according to its valuation. If I find a million dollars in gold in my backyard, I'll have to declare it in my tax form, so if I stumble upon and patent an idea that I think is worth a million dollars, isn't it fair that I pay taxes on it? Then later if I sue a company I can't say my idea is actually worth 20 million dollars.
- Cushman 15y ago
  Your analogy has a flaw: gold is a commodity with a known price. If I discover a rare artifact in my backyard, I can't be taxed on that because no one has any idea what it's worth— arguably it doesn't have worth unless someone pays me for it.
- kragen 15y ago
  It looks like, in the US, you actually get taxed on the gold when you sell it, not when you dig it up — http://www.irstaxattorney.com/tax-topics/irs-audit-techniques/Placer%20Mining%20Industry%20-%20Chapter%2013%20-%20Inventories%20and%20Uniform%20Capitalization.asp http://www.irstaxattorney.com/tax-topics/irs-audit-technique... says: "It is not uncommon to examine a return where the taxpayer claims to be in production yet keeps no inventory. Since the gold recovered must eventually be recognized as income, inventories must be maintained." This is precisely equivalent to the situation with patents.
dools 15y ago
"Since software patents are no different from hardware patents" I stopped reading at this point since PG appears to have just stated that software patents are the same as other patents but not really discussed this point very thouroughly. I would disagree completely. Software patents are certainly nothing like any other form of patent. I'll leave the copyright vs. patent argument for the moment (because although there are some cases where software patents are equivalent to trying to patent, say, a minor 7th chord), but I think the key difference is this: Software patents protect IP that is more often than not, common knowledge or completely trivial but where the implementation of that idea or concept will prove the success of the venture. "One click shopping" is like the canonical bullshit software patent. There are a million different ways to skin that cat, and patenting that as a concept is absurd. Other patents protect inventors who come up with a unique idea, process or design, the implementation of which is relatively trivial once you have that insight or knowledge. Things like fabricating a new kind of mouse trap are just so easy that anyone with a couple of bucks can do it: buy competing product, send to china, make profit. But I can't just go out and build, say, Farmville, unless I had all the source code and the engineering team at my disposal. I'm not sure how to codify that distinction, but I think that's the key. It's a bit like trying to write a computer program for common sense. I can tell the difference between good and bad patents (and I've never seen a software patent that I didn't think ridiculous) but codifying it in law is another story.
- bfe 15y ago
  It seems like you're saying though that software patents are being applied to things that are obvious - in which case, that would just mean the patent office isn't doing a proper job of not granting patents to subject matter that's obvious under current law.
  - dools 15y ago
    Not so much obvious as fundamental. Something like "One Click Shopping" is a refinement of user experience - it's not the same as having a chemical process that allows greater transistor density. The former requires skills and experience within a given field but isn't some kind of grand invention. The latter is something that would require great research, insight and discovery (and no, I don't think usability research counts here). Patenting one click shopping is like patenting being really good at something. Like if I were an amazing neurosurgeon, and I came up with this way of making sure I had a really steady hand - a way of breathing or a way of holding my wrist, and then I patented that and said that, even if someone came up with the same idea completely independently then they need to pay me for it.
deleted 15y ago
[deleted]
caf 15y ago
Whether they encourage innovation or not, patents were at least intended to. You don't get a patent for nothing. In return for the exclusive right to use an idea, you have to publish it, and it was largely to encourage such openness that patents were established. How common is it in practice for useful information to be gleaned from published software patents? How many of us have ever had a problem to solve, and thought: I know, I'll search the patent database to see if there's a clever solution that's been disclosed by the inventor! I would suspect very few. Which implies that we're not getting much out of "our" side of the bargain.
- prodigal_erik 15y ago
  Not only is obfuscated gibberish becoming more common in patents, but many employees are being ordered to never ever read them, because that brings the added risk of treble damages for wilful infringement.
- wes-exp 15y ago
  Indeed. I don't think anybody is benefiting. Quite the opposite. Software patents are seen as just a bunch of land mines that make it harder to get the job done. There is no thought of making use of them whatsoever.

74 points by joejohnson 15y ago

sedev 15y ago

I wonder whether the recommendation at the very end, about starving patent trolls of lawyer resources, is more or less viable now than it was five years ago. Although there are certainly plenty of megafirms, I'm not sure that the legal world is coherent enough for that to be a great strategy. Plus you need maybe two full-time lawyers and twice that many paralegals to operate on the Lodsys level of suing smaller developers and working your way up. Patent trolls, like terrorists, take advantage of asymmetric resource usage. So trying to attack their supply of lawyer resources might not work.

nextparadigms 15y ago
I wonder if this would really work: http://jeremy.tregunna.ca/articles/2011-07-28/fight_software_patents_with_patents_its_not_what_you_think_honest http://jeremy.tregunna.ca/articles/2011-07-28/fight_software...

aidenn0 15y ago

"When a company starts fighting over IP, it's a sign they've lost the real battle, for users." What does this say about Apple's lawsuits?

nextparadigms 15y ago
Pretty much the same thing. Notice how they're going after the most successful Android manufacturers?
- aidenn0 15y ago
  So when should I short Apple?
  - Goladus 15y ago
    When they start losing all their battles instead of just a few.
monochromatic 15y ago
That's an interesting line from pg, but I think it's a little overbroad. There are a whole host of reasons a company might start fighting over IP. Sometimes it's a bad sign, but not always by any means.
- pg 15y ago
  Yes, Apple shows you're right. I wouldn't be surprised if the cause in their case is that Steve is personally angry at having his stuff copied.

seles 15y ago

"Patent trolls are hard to fight precisely because they create nothing. Big companies are safe from being sued by other big companies because they can threaten a counter-suit. But because patent trolls don't make anything, there's nothing they can be sued for." This is a very good point and part of the problem. But there is a loop hole for big companies, that I can't help but wonder if it has even been used. A big company could, possibly under the table, use a small company to sue another big company, leaving no way for the sued to fight back.

groby_b 15y ago
Isn't that what Nathan Myrvolds (sp?) company does? Create a bunch of shell companies, sell them a patent with a "backend" deal. Worst case, the shell company is dead.
groby_b 15y ago
Isn't that what Nathan Myrvolds (sp?) company does? Create a bunch of shell companies, sell them a patent with a "backend" deal. Worst case, the shell company is dead.
onemoreact 15y ago
Shell companies have limited value in this case. Because if Microsoft uses XYZ corp to sue IBM then IBM can just sue Microsoft again and again.
- seles 15y ago
  Only if IBM knows Microsoft is using XYZ
  - ghshephard 15y ago
    Isn't this somewhat simliar to how Microsoft funded SCO to sue companies that used Linux? Microsoft didn't want to be in the position of suing their customers, so they used SCO as a shell to do their dirty work for them.

petegrif 15y ago

"One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general." This is possibly the most important statement in the piece.

ramidarigaz 15y ago
I dunno. "Hardware" patents allow for people to design something that would require millions of dollars of manufacturing equipment, and still get paid. I think the point of hardware patents is to allow the inventor to license that technology out to companies that have the capability to manufacture the hardware. Software patents don't have anything like that. All it takes for someone to implement a piece of software is a cheap laptop and time. Everyone can write software (or rather, everyone has the financial capability to do so).
- jebblue 15y ago
  Time and talent are everything. Have you ever patented anything?
MrVitaliy 15y ago
I would argue that patent term should be roughly proportional to the time it takes to build something useful with it. Now, I know this is a giant black hole defined by "useful" but consider this: it takes much less resources (time and money) to go from patent to product in software than in chemistry or airplane engine. Having a software patent term of 5 years is enough to have a leading product in competition even with software giants like IBM(start-ups are a good evidence of that). While the normal 20 year term for non-software patent, which certainly requires more time and money to have an upper hand vs big companies in already similar markets, should be left as it is. Perhaps there are other industries where, for the grater good of human kind, they can apply some limit function on patent term, say Pharmaceutics.
biehl 15y ago
Yes. And it is wrong. The economics of production of hardware/things is (still) fundamentally different from the production of digital copies. And that is why it makes good sense to be squarely against software patents and be indifferent about hardware patents.

sukuriant 15y ago

Would we as a culture be so up-in-arms about patents if they lasted ... 3-5 years in the CS industry/any-other-ethereal industry?

brlewis 15y ago
No, we would be about 1/4th as up in arms as we are now.

ghshephard 15y ago

A previous General Counsel of ours divided the community of IP lawyers into two categories - those who work hard to build companies, protect created intellectual property, and the other category - the attorneys who do the opposite - destroy companies and leech off wealth. He referred to those attorneys who do work for Patent Trolls at an all hands meeting as "bottom feeding lowlifes". I sometimes wonder how miserable Patent Attorneys who end up working for patent trolls must feel about themselves, or whether they've kidded themselves into believing they aren't part of the problem. Or whether they are just paid so much money they don't care.

bfe 15y ago
I know one active patent troll who is also a patent attorney, who wrote and prosecuted his own patent application and now writes his own threatening letters and licenses to the patent, has made a lot of money from it, and shows only delight at the money. He also still works for his law firm, and spends part of his time doing patent work for outside clients. I've long wondered how the rest of his firm felt about that.

s8qnze982y 15y ago

>> Frankly, it surprises me how small a role patents play in the software business. It's kind of ironic, considering all the dire things experts say about software patents stifling innovation, but when one looks closely at the software business, the most striking thing is how little patents seem to matter. This is not true any more. At least some developers withdrew from the US market because of patents fear (specifically, mobile app developers) - this is a business changing phenomenon.

monochromatic 15y ago
Who?
- s8qnze982y 15y ago
  http://www.guardian.co.uk/technology/appsblog/2011/jul/15/app-developers-withdraw-us-patents http://www.guardian.co.uk/technology/appsblog/2011/jul/15/ap...

saturdaysaint 15y ago

The secrecy section is interesting. The new web vanguard (thinking of Google and Facebook primarily) is motivated to shrug off, if not outright undermine, the patent system precisely because many of their most valuable assets are hidden and very difficult to reverse engineer, let alone patent. Their main assets aren't user-facing features or UI conventions - they're distinguished by hidden stores of data and advanced algorithms and tools for which few of their employees have complete source code access.

bfe 15y ago
This is a great point and I've seen it in action many times among clients - calculating whether to apply for a patent on a new idea or to protect it as a trade secret. In cases where the value is mainly in inaccessible firmware or a manufacturing process where it would be hard for someone to reverse engineer, and even harder to detect if someone did manage to copy it, they typically set up procedures to keep it as a trade secret. The other side to this, that I've seen among clients, is they really do often make decisions whether to devote money to developing a technology based on the expectation of whether they'll be able to patent it.

Peaker 15y ago

A difference between software patents and other patents that pg is missing, is that a piece of software is always a composition of thousands of (patentable) ideas. A non-software product is typically a composition of 0-10 (patentable) ideas. That means that the odds of any hardware product of accidentally hitting or being encumbered by a patent are nearly nil. The odds of a software project of not hitting any patent are nearly nil. This difference is circumstantial and not a fundamental property of things -- but a very important one.

yagibear 15y ago
Non-software products are quite complicated once you look beneath the surface, e.g. even a cheap toaster has 400 parts http://www.ted.com/talks/thomas_thwaites_how_i_built_a_toaster_from_scratch.html http://www.ted.com/talks/thomas_thwaites_how_i_built_a_toast... . Sure, the number of distinct parts would be lower (perhaps 100), they tend to involve more mature technology for which any patents might have now expired, and the toaster manufacturer probably buys many of the parts rather than manufacturing them themselves, but I would think that the odds of an advanced hardware product accidentally hitting a patent are significantly more than nil.

ghshephard 15y ago

Some Drug Patents cost the companies who discovered them hundreds of millions, and in some cases billions of dollars. The period of time might stretch over decades, require hundreds of researchers, and involved thousands and thousands of wrong turns. These drugs will never be created by private enterprise without the monopoly protection of a patent - so we either forego future development of those drugs, or socialize the process. On the flip side, I find it hard to put Drug Patents into the same category as a software patent that three engineers with a half-formed idea can sketch out in a period of a couple days, and then finish off with two or three round trips to the patent office. I (and this is where I probably disagree with Stallman) think that truly, truly innovative algorithms, such as public key encryption, should be greatly rewarded for a limited time as a result of being shared with everyone. But - "One Click Purchase" - a process that any high school student with knowledge of cookies could have invented in under 45 minutes if asked to, does not meet that bar. So - put me in the "For non-obvious patents" column.

Tichy 15y ago
I have heard that drug companies actually lobby for the government to make drug discovery that expensive, as it keeps competitors at bay. Might just be a rumor, but still...
rdl 15y ago
I think a lot of the reason drug discovery and development takes so long, and requires patents to maintain commercial viability, is the government/FDA imposed regulatory requirement. While the basic research isn't included, it's not really the kind of stuff a drug company copies from another drug company, either -- the more product-specific discovery and development happens over a shorter time window, then you get ~10 years of clinical trials. The biggest risk if there weren't IP protection would be someone copying you during the clinical trial phase -- before you can sell it, but after most of the risk is eliminated (and money has been spent). If we think the FDA is overall worthwhile (I think some kind of testing is key, but it could be more done by insurers for efficacy with the FDA focusing on safety, but the current system isn't horrible), I'd be willing to allow patents in that specific case, to compensate for the regulation. There is not anywhere near as much societal benefit to third-party audited testing of one click or business process, so trade secret remains possible for a lot longer (at least until the product is fielded), at which point first mover advantage and constant innovation should be at least partially effective in compensating the inventor.

podperson 15y ago

"One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general." I'm glad he says this because it's an important point. You can't stop software patents without stopping patents altogether, and that means Intel can't protect massive investments in new techniques for creating faster CPUs without deliberately obfuscating its hardware, etc. etc. etc. Kill patents and we're in for a world of reverse-threaded screws, gadgets filled with glue, and on and on.

vacri 15y ago
So instead of killing them altogether, give them a limited lifespan - 5 or 7 years.
brlewis 15y ago
For many years US software patents were stopped without stopping patents altogether. And the law is the same now as it was then, as I just detailed in an essay: http://ourdoings.com/ourdoings-startup/2011-07-28 http://ourdoings.com/ourdoings-startup/2011-07-28 Feel free to submit the essay to HN if you think it clears things up. EDIT: Timothy Lee pointed to his article from a couple years ago that covers the same topic in more detail: http://arstechnica.com/tech-policy/news/2009/01/resurrecting-the-supreme-courts-software-patent-ban-not-ready.ars http://arstechnica.com/tech-policy/news/2009/01/resurrecting...
akeefer 15y ago
That's totally incorrect. Why can't you draw the line at software? Books aren't patentable. Music isn't patentable. Paintings aren't patentable. Mathematical formulas aren't patentable. So why is it that you have to be against patents in general just because you're against software patents? Patentability is one method of protection out of many that can be applied, and it's been applied to particular kinds of "inventions" and not to others for hundreds of years. Software is protected by copyright and trade secret protections, so even without patents it will always be intellectual property that is strongly protected and which has material value.
- brlewis 15y ago

rubinelli 15y ago

An interesting idea than cropped up in another thread was taxing IP according to its valuation. If I find a million dollars in gold in my backyard, I'll have to declare it in my tax form, so if I stumble upon and patent an idea that I think is worth a million dollars, isn't it fair that I pay taxes on it? Then later if I sue a company I can't say my idea is actually worth 20 million dollars.

Cushman 15y ago
Your analogy has a flaw: gold is a commodity with a known price. If I discover a rare artifact in my backyard, I can't be taxed on that because no one has any idea what it's worth— arguably it doesn't have worth unless someone pays me for it.
kragen 15y ago
It looks like, in the US, you actually get taxed on the gold when you sell it, not when you dig it up — http://www.irstaxattorney.com/tax-topics/irs-audit-techniques/Placer%20Mining%20Industry%20-%20Chapter%2013%20-%20Inventories%20and%20Uniform%20Capitalization.asp http://www.irstaxattorney.com/tax-topics/irs-audit-technique... says: "It is not uncommon to examine a return where the taxpayer claims to be in production yet keeps no inventory. Since the gold recovered must eventually be recognized as income, inventories must be maintained." This is precisely equivalent to the situation with patents.

dools 15y ago

"Since software patents are no different from hardware patents" I stopped reading at this point since PG appears to have just stated that software patents are the same as other patents but not really discussed this point very thouroughly. I would disagree completely. Software patents are certainly nothing like any other form of patent. I'll leave the copyright vs. patent argument for the moment (because although there are some cases where software patents are equivalent to trying to patent, say, a minor 7th chord), but I think the key difference is this: Software patents protect IP that is more often than not, common knowledge or completely trivial but where the implementation of that idea or concept will prove the success of the venture. "One click shopping" is like the canonical bullshit software patent. There are a million different ways to skin that cat, and patenting that as a concept is absurd. Other patents protect inventors who come up with a unique idea, process or design, the implementation of which is relatively trivial once you have that insight or knowledge. Things like fabricating a new kind of mouse trap are just so easy that anyone with a couple of bucks can do it: buy competing product, send to china, make profit. But I can't just go out and build, say, Farmville, unless I had all the source code and the engineering team at my disposal. I'm not sure how to codify that distinction, but I think that's the key. It's a bit like trying to write a computer program for common sense. I can tell the difference between good and bad patents (and I've never seen a software patent that I didn't think ridiculous) but codifying it in law is another story.

bfe 15y ago
It seems like you're saying though that software patents are being applied to things that are obvious - in which case, that would just mean the patent office isn't doing a proper job of not granting patents to subject matter that's obvious under current law.
- dools 15y ago
  Not so much obvious as fundamental. Something like "One Click Shopping" is a refinement of user experience - it's not the same as having a chemical process that allows greater transistor density. The former requires skills and experience within a given field but isn't some kind of grand invention. The latter is something that would require great research, insight and discovery (and no, I don't think usability research counts here). Patenting one click shopping is like patenting being really good at something. Like if I were an amazing neurosurgeon, and I came up with this way of making sure I had a really steady hand - a way of breathing or a way of holding my wrist, and then I patented that and said that, even if someone came up with the same idea completely independently then they need to pay me for it.

deleted 15y ago

[deleted]

caf 15y ago

Whether they encourage innovation or not, patents were at least intended to. You don't get a patent for nothing. In return for the exclusive right to use an idea, you have to publish it, and it was largely to encourage such openness that patents were established. How common is it in practice for useful information to be gleaned from published software patents? How many of us have ever had a problem to solve, and thought: I know, I'll search the patent database to see if there's a clever solution that's been disclosed by the inventor! I would suspect very few. Which implies that we're not getting much out of "our" side of the bargain.

prodigal_erik 15y ago
Not only is obfuscated gibberish becoming more common in patents, but many employees are being ordered to never ever read them, because that brings the added risk of treble damages for wilful infringement.
wes-exp 15y ago
Indeed. I don't think anybody is benefiting. Quite the opposite. Software patents are seen as just a bunch of land mines that make it harder to get the job done. There is no thought of making use of them whatsoever.