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>If “the patent system is broken” is a lazy rhetorical cheat, then “software patents shouldn’t be allowed” is the most completely vacuous intellectual cop-out p

>If “the patent system is broken” is a lazy rhetorical cheat, then “software patents shouldn’t be allowed” is the most completely vacuous intellectual cop-out possible. What an insulting and unfounded statement. The arguments against software patents are strong and coherent. Intelligent people can disagree in good faith about the issue, but labeling the anti-software patent position a "completely vacuous cop-out" is unjustified rhetoric. So far as I can see, he doesn't really provide anything other than "math is hard, companies spend money on it" to support a contrary position, and the philosophical point that physical inventions are based on mathematical physics is true but outside the scope of legal reasoning. The whole piece irritates me, because it is really just repeating the standard arguments for the utility of the patent system in general which all serious participants in the debate already know. The implication is that opponents of software patents are just too ignorant to know the basic issues - which may be true enough of Random Internet Commentators, but is certainly not true of the many experts who are opposed to software patents.

mikeash 15y ago
I particularly enjoyed the bit where he starts with, "What we keep calling 'software patents' are just regular old patents", then spends several paragraphs discussing the history of software patents and how they've been treated differently than others.
- berberich 15y ago
  There's a difference between patents that happen to cover software and a carved-out subsection of patents designated specifically for software by law. We currently have the former - Niley believes we should have the latter.
  - mikeash 15y ago
    That's certainly true, but as I understood it, he's arguing that patents that happen to cover software are no different from patents that happen to cover anything else, and then he goes on to describe in detail how patents that happen to cover software are different from others.
    - GHFigs 15y ago
      I'll attempt to clarify, but these my own words, not Nilay's: 1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed". 2. Software has certain properties that result in undesirable side-effects or ambiguities under the patent system at present, therefore we should adjust the treatment of patents on software to mitigate those effects and clarify those ambiguities. An example would be reducing term lengths to something more compatible with the pace of innovation.
      - mikeash 15y ago
        > 1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed". I don't understand, how does that work? Let's get rid of the word "software" for a moment. Say I think that patents involving ducks shouldn't be allowed, for whatever reason. There's nothing inherent about ducks that means you can't make a patentable invention with a duck. But that by no means implies that my stance against duck patents means I'm against patents as a whole.
        GHFigs 15y ago
        "One thing I do feel pretty certain of is that if you're against duck patents, you're against patents in general. Gradually our machines consist more and more of ducks. Things that used to be done with levers and cams and gears are now done with bills and feathers and webbed feet. There's nothing special about mechanical embodiments of control systems that should make them patentable, and the duck equivalent not." -- http://www.paulgraham.com/softwarepatents.html http://www.paulgraham.com/softwarepatents.html I would also point out the other possibility in what I said before: that statements like "duck patents shouldn't be allowed" are wrong. Maybe "wrong" sounds too absolute, so substitute "incomplete" if you like. "Some duck patents shouldn't be allowed" is a different proposition, and probably closer to what most people actually think, but Nilay is specifically addressing the absolutist rhetorical frenzy on you see on sites like Quacker News.
petegrif 15y ago
I don't think his piece was intended to be a rebuttal to serious informed analysts so much as an attempt to discredit the naive abolitionists who frequently know little or nothing about patent law and who fix on edge cases and abuse as if they are the norm and declare 'off with his head.' If you are irritated by such standard arguments, which I respect, bear in mind that there are those of us who are frustrated by endless statements about how 'obvious' software patents are and how the edge cases demonstrate the whole system is broken and hence must be abandoned which is as coherent a position as proposing to do away with criminal law because of high profile miscarriages of justice. The law is an ass. Duh.
astangl 15y ago
Agreed. He seems wowed by the Greek letters and radical signs that he quotes from the PageRank and Apple patents, thinking it is some precious knowledge that we public would be lucky to (eventually) be able to use. In truth, by the time people can use the knowledge, unencumbered (even with a proposed shorter patent timespan), it is obsolete and/or obvious. So the whole too-long article is built on a questionable premise, that software patents are worth preserving.
joe_the_user 15y ago
Another dubious aspect is linking to PG's essay with the implication it's a slam dunk argument for software patents. While PG may come out in favor of software patents, he readily admits that the issue is difficult. PG does make a good argument that abolition of software patent would be a step in the abolition of all patents (and the incentivation of companies to hide all profitable innovations). Yes, but the further institutionalization of software patents could just as easily result in a limited number of large companies owning the right to innovate in any fashion. Pick your poison. One thing to consider here is that GPL's software provides a similar incentive system to the patent system. In exchange for releasing its algorithms, a company gets to distribute a huge store of existing software. Letting that arrangement replacement the patent system seems like a fine approach to me.
- Peaker 15y ago
  The fact software patents are published in their patent form isn't any better than "hiding these inventions". As others commented, nobody reads software patents (it's even legally dangerous to do so). What we have no is the worst of all worlds: Invention secrecy and noncompetitive monopolies. Also, software is a composition of far more patentable components than other things -- so patents are much more troublesome in that field. A software patent is somewhat like patenting a literary concept or a musical technique.

mikeash 15y ago

I particularly enjoyed the bit where he starts with, "What we keep calling 'software patents' are just regular old patents", then spends several paragraphs discussing the history of software patents and how they've been treated differently than others.

berberich 15y ago
There's a difference between patents that happen to cover software and a carved-out subsection of patents designated specifically for software by law. We currently have the former - Niley believes we should have the latter.
- mikeash 15y ago
  That's certainly true, but as I understood it, he's arguing that patents that happen to cover software are no different from patents that happen to cover anything else, and then he goes on to describe in detail how patents that happen to cover software are different from others.
  - GHFigs 15y ago
    I'll attempt to clarify, but these my own words, not Nilay's: 1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed". 2. Software has certain properties that result in undesirable side-effects or ambiguities under the patent system at present, therefore we should adjust the treatment of patents on software to mitigate those effects and clarify those ambiguities. An example would be reducing term lengths to something more compatible with the pace of innovation.
    - mikeash 15y ago
      > 1. There is nothing inherent about "software" that suggests you can't create a patentable invention with it, therefore statements like "software patents shouldn’t be allowed" are wrong, or at least equivalent to "patents shouldn't be allowed". I don't understand, how does that work? Let's get rid of the word "software" for a moment. Say I think that patents involving ducks shouldn't be allowed, for whatever reason. There's nothing inherent about ducks that means you can't make a patentable invention with a duck. But that by no means implies that my stance against duck patents means I'm against patents as a whole.
      - GHFigs 15y ago
        "One thing I do feel pretty certain of is that if you're against duck patents, you're against patents in general. Gradually our machines consist more and more of ducks. Things that used to be done with levers and cams and gears are now done with bills and feathers and webbed feet. There's nothing special about mechanical embodiments of control systems that should make them patentable, and the duck equivalent not." -- http://www.paulgraham.com/softwarepatents.html http://www.paulgraham.com/softwarepatents.html I would also point out the other possibility in what I said before: that statements like "duck patents shouldn't be allowed" are wrong. Maybe "wrong" sounds too absolute, so substitute "incomplete" if you like. "Some duck patents shouldn't be allowed" is a different proposition, and probably closer to what most people actually think, but Nilay is specifically addressing the absolutist rhetorical frenzy on you see on sites like Quacker News.

petegrif 15y ago

I don't think his piece was intended to be a rebuttal to serious informed analysts so much as an attempt to discredit the naive abolitionists who frequently know little or nothing about patent law and who fix on edge cases and abuse as if they are the norm and declare 'off with his head.' If you are irritated by such standard arguments, which I respect, bear in mind that there are those of us who are frustrated by endless statements about how 'obvious' software patents are and how the edge cases demonstrate the whole system is broken and hence must be abandoned which is as coherent a position as proposing to do away with criminal law because of high profile miscarriages of justice. The law is an ass. Duh.

astangl 15y ago

Agreed. He seems wowed by the Greek letters and radical signs that he quotes from the PageRank and Apple patents, thinking it is some precious knowledge that we public would be lucky to (eventually) be able to use. In truth, by the time people can use the knowledge, unencumbered (even with a proposed shorter patent timespan), it is obsolete and/or obvious. So the whole too-long article is built on a questionable premise, that software patents are worth preserving.

joe_the_user 15y ago

Another dubious aspect is linking to PG's essay with the implication it's a slam dunk argument for software patents. While PG may come out in favor of software patents, he readily admits that the issue is difficult. PG does make a good argument that abolition of software patent would be a step in the abolition of all patents (and the incentivation of companies to hide all profitable innovations). Yes, but the further institutionalization of software patents could just as easily result in a limited number of large companies owning the right to innovate in any fashion. Pick your poison. One thing to consider here is that GPL's software provides a similar incentive system to the patent system. In exchange for releasing its algorithms, a company gets to distribute a huge store of existing software. Letting that arrangement replacement the patent system seems like a fine approach to me.

Peaker 15y ago
The fact software patents are published in their patent form isn't any better than "hiding these inventions". As others commented, nobody reads software patents (it's even legally dangerous to do so). What we have no is the worst of all worlds: Invention secrecy and noncompetitive monopolies. Also, software is a composition of far more patentable components than other things -- so patents are much more troublesome in that field. A software patent is somewhat like patenting a literary concept or a musical technique.