8 ms·

Posner may well be one of the most important figures in tech in the coming decade for standing up against the lunacy of software patents. What Congress and the

by cletus 14y ago

Posner may well be one of the most important figures in tech in the coming decade for standing up against the lunacy of software patents. What Congress and the President don't seem to understand is the cost of patent litigation in the US poses an existential threat to America's dominant position in tech. One of the most compelling arguments to me (against these patents) is that in pharmaceuticals, for example, you are dealing with a handful of patents. Some processes might be patented, maybe even some equipment (easily licensed generally) but basically the patents that go into a process (that may itself be patented) are minimal and can be reasonably well understood by those running such businesses. Posner pointed out that a smartphone may well contain (and violate) thousands of patents. That right there is a sure sign that something is rotten in the state of the patent system. The solution here isn't reform, as some suggest (ie raising the bar to what's patentable). It's simply to get rid of them. First-to-market and execution are what matters and what should matter. 20 year exclusives for vaguely worded patents on things that are more often than not obvious is just a means for big companies to extinguish smaller companies.

freehunter 14y ago
Especially in the tech world. If you're not first on the market with something, in many cases you might as well be last. Problem is, this keeps out small companies trying to innovate beyond their corporate brethren. If I come up with something completely new and awesome, it might be two years before I can start manufacturing it and it might still be new and innovative then. HTC might have it out in 18 months. So during the time I'm designing and testing this equipment, I have to maintain complete secrecy through the entire supply chain, because if one link in the chain goes down, my billion dollar rivals have run off with the biggest idea of my five cent company. Raising the bar and lowering the time frame would lower the barriers to entry moreso than removing patents altogether. Two years to get to market and then 6 months after release would be close to sufficient.
- ynniv 14y ago
  a) You probably didn't come up with something new and awesome worth the court's protection (sorry) b) If you did, HTC is going to use it anyway and bury your suit in the courts until you run out of money (sorry) c) Either way, your example only applies to hardware or you wouldn't have a supply chain or manufacturing Ultimately, theft of the biggest idea of your 5¢ company doesn't warrant tens of billions of dollars of legal overhead. Perhaps I agree that raising the bar fixes the problem: if your invention can be implemented by a general purpose computer, it does not deserve patent protection. And that's "can", not "is" : if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection. Patent protection is for mechanical inventions (wheat threshers) and material transformations (metal casting). If pharma deserves protection, it is the exception, not the rule.
  - freehunter 14y ago
    Well, it depends. If I had a truly great idea and also had interest in forming a cell phone company, why would I settle for just selling the idea (and why would I attempt to sell it if during the negotiations, the idea could be stolen at any time with no protection for me?) when I could be making millions selling a phone with my great software innovation? The point is, if there's absolutely no legal protection on ideas, ideas are worthless. People use the argument that math is universal and doesn't deserve protection, but the reality is that math is hard. If you come up with a math solution that is really clever, I feel you should be entitled to some kind of protection on it. What is hardware but applied math? Does programming not take man-hours of research and development? Does every line of code paid for make it to market? If we're arguing that R&D costs are what make sense for patents (like the pharma arguments I hear) then maybe you should have to show an itemized bill for your R&D and patent length could be adjusted so it's yours until you recoup that investment. We trash on Edison for stealing ideas and beating the inventor to the PTO. The same thing could happen in software. The solution I see to this is making sure the original inventor has a reasonable time frame to capitalize on the idea before it becomes a free-for-all. By that point, the market has had a chance to speak and recognize your innovation. What we can all agree on is that patents shouldn't be a lifetime income source based on lawsuits.
  - shasta 14y ago
    > if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection The current patent laws are insanity, but I don't agree with this. The class of mathematical ideas too abstract to patent should be distinguished not just by whether or not an idea can be modeled mathematically (they all can!) but by how fundamental the ideas are. The goal should be to protect abstract ideas that will naturally be discovered independently by mathematicians. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals.
    - ynniv 14y ago
      Any idea can be modelled mathematically, but that doesn't meet my criteria. Modeling is an estimation of how something works, but it isn't the mechanism by which something works. The current state of software patents results in people filing three sets of claims: the invention itself, a method that implements the invention, and a computer system that implements the invention. The rationale is that if invention claims (complicated math) are not enforceable, method claims might be, and if neither of those are, perhaps claims that mention hardware claim might be. You'll note that none of these motivations are strong, and that's because it has been left up to the courts to decide, and there is very little case law around software patents since everyone settles out of court. We think they are patentable because someone decades ago successfully enforced a patent regarding computer controlled curation of plastic. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals. What makes complex software more valuable than simple software? Any engineer worth their salt will claim the precise opposite. Also, a product is not in itself patentable outside of the trade dress. You first have to find the novel invention inside the product, which is generally a simple idea.
daemon13 14y ago
Cletus, to clarify/add to your point - when we speak about pharmaceuticals, usually we are speaking about one patented molecule, one... Before any pharma company can either start producing or outlicense, it shall go through Phase 1, 2 and 3 clinical trials. The cost of those is estimated [if we speak about serious stuff] close to 2-3 billion usd.
podperson 14y ago
Posner's article reminds me of a nice polemic in season 2 of _House M.D._ about the abuse of pharmaceutical patents (by way of counter-example). They take a drug they know works, tack on a vitamin molecule, patent it, and stop manufacturing / marketing its predecessor. Speaking as someone who has worked in Pharmaceutical marketing (I developed mobile sales tools), this seems pretty accurate. Meanwhile, if you look at how difficult it was for the concept of usability to break into the mainstream (it essentially required Microsoft's persistent application of market power to popularize ideas borrowed from Apple/Xerox/et al. and Xerox tossed a lot of money and time at PARC just for starters). If patent law were an easy problem to solve, it would have been solved.
PakG1 14y ago
Posner pointed out that a smartphone may well contain (and violate) thousands of patents. That right there is a sure sign that something is rotten in the state of the patent system. This sentence has made me think that there seems to be an amazing parallel between the patent industry and medicine. In the past, patents were quite simple and few, and one could see how things should go in patent disputes. Patents did not get complicated at a granular level because the level of knowledge necessary to identify how complex things can actually get did not exist yet. For medicine as well, symptom analysis and disease diagnosis was very limited to our level of knowledge. As our knowledge increased, the complexity of our treatment strategies increased, such that there is a large overhead for diagnosis and treatment, just like there is a large overhead for patent disputes. edit: great example: http://xkcd.com/931/ http://xkcd.com/931/ The difference is that for patents, it probably doesn't need to be as complex as it is, while for medicine, it probably does need to be as complex as it is.
flyinRyan 14y ago
I liked much of your message but your "cure" is worse than the disease. A "free for all" world only benefits the big players. With the current system, as bad as it is, at least the little players can file patents and possibly get bought out to acquire them. What truly needs to happen is the governments need to recognize that for the markets to work properly we need to promote small and medium size businesses over mega corporations. Megacorps don't need any protections as their size is protection enough. For example, if you hit a small business with a $1million fine you've killed them. Hit big Oil or a mega bank and they most likely made more money off what ever you're fining them for than that tiny penalty. Given that, I would say we take patents back to what most people that believe in them think they should be about: protecting the little guy. A patent should only ever be applicable to an entity under a certain size. Alternatively, to get a patent you should have to prove that you've invested so much in the development of a patent that not getting it means you're going out of business (e.g. Apple betting it all on the iPhone). We need to be promoting small businesses, where as right now all legislation seems to give more ammunition to the big companies that already have all the tools.
- chris_wot 14y ago
  I liked much of your message but your "cure" is worse than the disease. A "free for all" world only benefits the big players. With the current system, as bad as it is, at least the little players can file patents and possibly get bought out to acquire them. This is a remarkable assertion. The point of patents is to allow for a monopoly for a limited time while a product ormideamis being invented. It was never a mechanism to be bought out by a larger company! This entire argument is rife with problems. For example, you think that a million dollar lawsuit from a "megacorp" is no big thing - yet we just saw lawsuits between Oracle and Google, where Google won and yet still spent tens of millions in court. And for what? They gained nothing except the assurance that they can't be sued for damages... Talk about putting the cart before the horse! No, the patent system is broken. Poster gives a variety of solutions, but the two solutions that would probably be most equitable are to reduce the term of software patents (no more than 10 years), force licensing terms when infringements are found (the license terms should be determined along with the patent), and a way of ensuring that any patent filed must have a commercial product of some form in the market within 5 years, else you lose the patent. Administration of patents should be resolved too - there are too many patentsm being granted that should not be.

by cletus 14y ago

freehunter 14y ago

Especially in the tech world. If you're not first on the market with something, in many cases you might as well be last. Problem is, this keeps out small companies trying to innovate beyond their corporate brethren. If I come up with something completely new and awesome, it might be two years before I can start manufacturing it and it might still be new and innovative then. HTC might have it out in 18 months. So during the time I'm designing and testing this equipment, I have to maintain complete secrecy through the entire supply chain, because if one link in the chain goes down, my billion dollar rivals have run off with the biggest idea of my five cent company. Raising the bar and lowering the time frame would lower the barriers to entry moreso than removing patents altogether. Two years to get to market and then 6 months after release would be close to sufficient.

ynniv 14y ago
a) You probably didn't come up with something new and awesome worth the court's protection (sorry) b) If you did, HTC is going to use it anyway and bury your suit in the courts until you run out of money (sorry) c) Either way, your example only applies to hardware or you wouldn't have a supply chain or manufacturing Ultimately, theft of the biggest idea of your 5¢ company doesn't warrant tens of billions of dollars of legal overhead. Perhaps I agree that raising the bar fixes the problem: if your invention can be implemented by a general purpose computer, it does not deserve patent protection. And that's "can", not "is" : if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection. Patent protection is for mechanical inventions (wheat threshers) and material transformations (metal casting). If pharma deserves protection, it is the exception, not the rule.
- freehunter 14y ago
  Well, it depends. If I had a truly great idea and also had interest in forming a cell phone company, why would I settle for just selling the idea (and why would I attempt to sell it if during the negotiations, the idea could be stolen at any time with no protection for me?) when I could be making millions selling a phone with my great software innovation? The point is, if there's absolutely no legal protection on ideas, ideas are worthless. People use the argument that math is universal and doesn't deserve protection, but the reality is that math is hard. If you come up with a math solution that is really clever, I feel you should be entitled to some kind of protection on it. What is hardware but applied math? Does programming not take man-hours of research and development? Does every line of code paid for make it to market? If we're arguing that R&D costs are what make sense for patents (like the pharma arguments I hear) then maybe you should have to show an itemized bill for your R&D and patent length could be adjusted so it's yours until you recoup that investment. We trash on Edison for stealing ideas and beating the inventor to the PTO. The same thing could happen in software. The solution I see to this is making sure the original inventor has a reasonable time frame to capitalize on the idea before it becomes a free-for-all. By that point, the market has had a chance to speak and recognize your innovation. What we can all agree on is that patents shouldn't be a lifetime income source based on lawsuits.
- shasta 14y ago
  > if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection The current patent laws are insanity, but I don't agree with this. The class of mathematical ideas too abstract to patent should be distinguished not just by whether or not an idea can be modeled mathematically (they all can!) but by how fundamental the ideas are. The goal should be to protect abstract ideas that will naturally be discovered independently by mathematicians. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals.
  - ynniv 14y ago
    Any idea can be modelled mathematically, but that doesn't meet my criteria. Modeling is an estimation of how something works, but it isn't the mechanism by which something works. The current state of software patents results in people filing three sets of claims: the invention itself, a method that implements the invention, and a computer system that implements the invention. The rationale is that if invention claims (complicated math) are not enforceable, method claims might be, and if neither of those are, perhaps claims that mention hardware claim might be. You'll note that none of these motivations are strong, and that's because it has been left up to the courts to decide, and there is very little case law around software patents since everyone settles out of court. We think they are patentable because someone decades ago successfully enforced a patent regarding computer controlled curation of plastic. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals. What makes complex software more valuable than simple software? Any engineer worth their salt will claim the precise opposite. Also, a product is not in itself patentable outside of the trade dress. You first have to find the novel invention inside the product, which is generally a simple idea.

daemon13 14y ago

Cletus, to clarify/add to your point - when we speak about pharmaceuticals, usually we are speaking about one patented molecule, one... Before any pharma company can either start producing or outlicense, it shall go through Phase 1, 2 and 3 clinical trials. The cost of those is estimated [if we speak about serious stuff] close to 2-3 billion usd.

podperson 14y ago

Posner's article reminds me of a nice polemic in season 2 of _House M.D._ about the abuse of pharmaceutical patents (by way of counter-example). They take a drug they know works, tack on a vitamin molecule, patent it, and stop manufacturing / marketing its predecessor. Speaking as someone who has worked in Pharmaceutical marketing (I developed mobile sales tools), this seems pretty accurate. Meanwhile, if you look at how difficult it was for the concept of usability to break into the mainstream (it essentially required Microsoft's persistent application of market power to popularize ideas borrowed from Apple/Xerox/et al. and Xerox tossed a lot of money and time at PARC just for starters). If patent law were an easy problem to solve, it would have been solved.

PakG1 14y ago

Posner pointed out that a smartphone may well contain (and violate) thousands of patents. That right there is a sure sign that something is rotten in the state of the patent system. This sentence has made me think that there seems to be an amazing parallel between the patent industry and medicine. In the past, patents were quite simple and few, and one could see how things should go in patent disputes. Patents did not get complicated at a granular level because the level of knowledge necessary to identify how complex things can actually get did not exist yet. For medicine as well, symptom analysis and disease diagnosis was very limited to our level of knowledge. As our knowledge increased, the complexity of our treatment strategies increased, such that there is a large overhead for diagnosis and treatment, just like there is a large overhead for patent disputes. edit: great example: http://xkcd.com/931/ http://xkcd.com/931/ The difference is that for patents, it probably doesn't need to be as complex as it is, while for medicine, it probably does need to be as complex as it is.

flyinRyan 14y ago

I liked much of your message but your "cure" is worse than the disease. A "free for all" world only benefits the big players. With the current system, as bad as it is, at least the little players can file patents and possibly get bought out to acquire them. What truly needs to happen is the governments need to recognize that for the markets to work properly we need to promote small and medium size businesses over mega corporations. Megacorps don't need any protections as their size is protection enough. For example, if you hit a small business with a $1million fine you've killed them. Hit big Oil or a mega bank and they most likely made more money off what ever you're fining them for than that tiny penalty. Given that, I would say we take patents back to what most people that believe in them think they should be about: protecting the little guy. A patent should only ever be applicable to an entity under a certain size. Alternatively, to get a patent you should have to prove that you've invested so much in the development of a patent that not getting it means you're going out of business (e.g. Apple betting it all on the iPhone). We need to be promoting small businesses, where as right now all legislation seems to give more ammunition to the big companies that already have all the tools.

chris_wot 14y ago
I liked much of your message but your "cure" is worse than the disease. A "free for all" world only benefits the big players. With the current system, as bad as it is, at least the little players can file patents and possibly get bought out to acquire them. This is a remarkable assertion. The point of patents is to allow for a monopoly for a limited time while a product ormideamis being invented. It was never a mechanism to be bought out by a larger company! This entire argument is rife with problems. For example, you think that a million dollar lawsuit from a "megacorp" is no big thing - yet we just saw lawsuits between Oracle and Google, where Google won and yet still spent tens of millions in court. And for what? They gained nothing except the assurance that they can't be sued for damages... Talk about putting the cart before the horse! No, the patent system is broken. Poster gives a variety of solutions, but the two solutions that would probably be most equitable are to reduce the term of software patents (no more than 10 years), force licensing terms when infringements are found (the license terms should be determined along with the patent), and a way of ensuring that any patent filed must have a commercial product of some form in the market within 5 years, else you lose the patent. Administration of patents should be resolved too - there are too many patentsm being granted that should not be.