4 ms·

"Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go." I don't agree. If a genuine invention

by sgt101 12y ago

"Still, every kind of software patent is bad, dishonest, and harmful to our industry and progress. They all need to go." I don't agree. If a genuine invention is made which contributes to the state of the art and is significant then there are two options for monetizing it. It can be patented, or it can be kept secret. Which is more damaging?

DanBC 12y ago
Look at the one-handed half-keyboard patent owned by Matias. You have half a keyboard and holding space swaps between them. This was patented. It was also independantly discovered by several different people, who were hit with patent claims and forced to stop. Hardware half keyboards are currently only available from Matias for ~$600, which seems sub-optimal.
pluma 12y ago
This is a false dichotomy. If someone makes such an invention, there is no incentive to keep it perfectly secret (i.e. hide it in a filing cabinet and make no use of it that might hint towards its existence) -- other than sheer paranoia or vanity. Instead they will either sell it like any other trade secret or make use of it. If they make use of it and it gives them a notable advantage over competitors, the competitors will seek to either reverse engineer the invention or invest in finding something that works equally well or even better. If the competitors succeed, the original invention becomes obsolete (rendering knowledge of it less valuable) or common knowledge. What's more, a competitor or a non-commercial organization might decide to publish their findings for various reasons ranging from harming the original inventor by eliminating their advantage to benevolence / publicity / "fostering innovation". In the current situation a lot of patents are flat-out useless to anyone but the holder. They either describe something that is blindingly obvious ("X on a computer"), something that is already common knowledge (but nobody bothered patenting before) or that is so vague the description itself is worthless to anyone seeking to copy the idea when the patent has expired. Patents are supposed to be a fair deal between the public and the applicant: the applicant is offered legal protection to maintain a monopoly in a technology they created for a limited amount of time but in return they have to disclose their technology so anyone can copy it once the protection expires. If you take away that benefit to the public, it's just a blessed monopoly that can be used to extort anyone who independently comes up with the same idea (or shares the same common knowledge on which it is based). Even with that benefit to the public most software patents would still be harmful because of their insane longevity -- the software industry is disrupted on a monthly, weekly or even daily basis, but patents can be maintained for more than a decade. What's so bad if software patents were abolished? Copyright would still exist. Trade secrets would still exist. Trademarks and trade dress would still exist. NDAs and other legally binding agreements would still exist. At this point the benefits of software patents are theoretical at best -- every single tech company out there could potentially be sued into oblivion if they were to pop up on the radar of a patent troll. Patent infringement has become SOP for software companies -- not because they don't care about other people's IP but because it's simply impossible to license every single "invention" your company uses (and let's not get started on what the situation looks like for contractors).
- throwawaykf05 12y ago
  This is a very narrow view of reality. 1. It's not vanity or paranoia, ideas do get stolen, bringing down startups and setting back careers. I personally know of startups get ripped off by the big guys as well as entire research papers being ripped off from professors. 2. Reverse engineer Google's or Facebook's infrastructure, if it's that easy. Conversely, I've seen people reverse engineer a product from its wireless signals. It probably took years to build that product, but was reversed inside a week. Similarly, it took Apple years to create and refine the iPhone UI, and it took Android only a year to copy it. How is that fair? Secrecy works only if your advantage is never exposed to the outside world, like when it's hidden away in datacenters. And when it does work, how is that good for advancing the industry? 3. Your view assumes that every inventor can bring the invention to market. Look around you - you are surrounded by technology that requires thousands of different components and suppliers to make (of which of software is just one) and one could invent an improvement to any of them. Example: you thought of a more efficient way to transmit AC over power lines. How do you make, use or sell it? Do not assume you work for a power company.
  - Filligree 12y ago
    "Fairness" was never the point. The original (written, at least) intent of the patent laws was "to advance the state of the art". Fairness to the inventor never enters into it, except to the degree that such a thing is necessary to motivate inventions; if you agree with that, then the patent laws should probably be mostly dismantled.
    - throwawaykf05 12y ago
      "Advancing the state of the art" like all things in patent law, was deliberately broadly written because there are thousands of ways to do so and infinite multitudes of nuances to consider. Fairness absolutely was, and always has been, one of the main points. In fact, all property rights concern fairness, and intellectual property rights are no different.
loup-vaillant 12y ago
DanBC just gave one example, but independent invention tend to be the norm. Strike out patents, and inventions will likely flow anyway —if one keeps it secret, others will publish it. It doesn't really matter that inventors "deserve" a reward: the cost monopoly is just too high for society at large. Besides, you forgot a third option: "first to market".
- throwawaykf05 12y ago
  1. Independent invention may be common, but simultaneous independent invention is very rare. Look at the few dozen examples on wikipedia and compare that to the millions of inventions throughout history. In fact the USPTO moved to a first-to-file regime precisely for that reason -- less than a fraction of a percent of patents were involved in interferences. (An interference is a case of simultaneous independent invention at the PTO.) Reinventing something years after somebody already has is no great feat. 2. There is no empirical evidence that the "cost of monopoly to society is too large". In fact there are tons of economic and historical studies that clearly show the benefits of patents by comparing metrics before and after patent systems were introduced. There are also studies that show the costs these systems impose. It is, however, impossible to say if the costs outweigh the benefits because the metrics used are largely orthogonal.
  - loup-vaillant 12y ago
    1. Okay, then, let's do a study about how much time does independent invention need. Then patent durations must be tuned to that. For instance, if most independent re-inventions takes 2 years, then we shouldn't grant patents for more than 3 of 4 years. I suspect that according to this criterion, current durations are much, much too high. 2. I just take for granted that all other things being equal, having a monopoly is much worse than not having it: the (diffuse) cost to society at large is much higher than the (concentrated, visible) benefit to the monopolist. I take it for granted that it is not defensible to have the society pay a significant cost just to reward a lone entity, no matter how much he "deserves a reward". Global costs must be balanced by global benefits. The very existence of an invention is such a global benefit. But unless the patent helped get the invention out sooner, that benefit is void, and the patent, unjustified. Also, apparently, we haven't read the same "tons of studies". The arguments againts patents I have read so far (Against Intellectual Monopoly was a good read), sounded very compelling —not to mention grounded in evidence. Could you give me some pointers to the studies you speak of?

by sgt101 12y ago

DanBC 12y ago

Look at the one-handed half-keyboard patent owned by Matias. You have half a keyboard and holding space swaps between them. This was patented. It was also independantly discovered by several different people, who were hit with patent claims and forced to stop. Hardware half keyboards are currently only available from Matias for ~$600, which seems sub-optimal.

pluma 12y ago

This is a false dichotomy. If someone makes such an invention, there is no incentive to keep it perfectly secret (i.e. hide it in a filing cabinet and make no use of it that might hint towards its existence) -- other than sheer paranoia or vanity. Instead they will either sell it like any other trade secret or make use of it. If they make use of it and it gives them a notable advantage over competitors, the competitors will seek to either reverse engineer the invention or invest in finding something that works equally well or even better. If the competitors succeed, the original invention becomes obsolete (rendering knowledge of it less valuable) or common knowledge. What's more, a competitor or a non-commercial organization might decide to publish their findings for various reasons ranging from harming the original inventor by eliminating their advantage to benevolence / publicity / "fostering innovation". In the current situation a lot of patents are flat-out useless to anyone but the holder. They either describe something that is blindingly obvious ("X on a computer"), something that is already common knowledge (but nobody bothered patenting before) or that is so vague the description itself is worthless to anyone seeking to copy the idea when the patent has expired. Patents are supposed to be a fair deal between the public and the applicant: the applicant is offered legal protection to maintain a monopoly in a technology they created for a limited amount of time but in return they have to disclose their technology so anyone can copy it once the protection expires. If you take away that benefit to the public, it's just a blessed monopoly that can be used to extort anyone who independently comes up with the same idea (or shares the same common knowledge on which it is based). Even with that benefit to the public most software patents would still be harmful because of their insane longevity -- the software industry is disrupted on a monthly, weekly or even daily basis, but patents can be maintained for more than a decade. What's so bad if software patents were abolished? Copyright would still exist. Trade secrets would still exist. Trademarks and trade dress would still exist. NDAs and other legally binding agreements would still exist. At this point the benefits of software patents are theoretical at best -- every single tech company out there could potentially be sued into oblivion if they were to pop up on the radar of a patent troll. Patent infringement has become SOP for software companies -- not because they don't care about other people's IP but because it's simply impossible to license every single "invention" your company uses (and let's not get started on what the situation looks like for contractors).

throwawaykf05 12y ago
This is a very narrow view of reality. 1. It's not vanity or paranoia, ideas do get stolen, bringing down startups and setting back careers. I personally know of startups get ripped off by the big guys as well as entire research papers being ripped off from professors. 2. Reverse engineer Google's or Facebook's infrastructure, if it's that easy. Conversely, I've seen people reverse engineer a product from its wireless signals. It probably took years to build that product, but was reversed inside a week. Similarly, it took Apple years to create and refine the iPhone UI, and it took Android only a year to copy it. How is that fair? Secrecy works only if your advantage is never exposed to the outside world, like when it's hidden away in datacenters. And when it does work, how is that good for advancing the industry? 3. Your view assumes that every inventor can bring the invention to market. Look around you - you are surrounded by technology that requires thousands of different components and suppliers to make (of which of software is just one) and one could invent an improvement to any of them. Example: you thought of a more efficient way to transmit AC over power lines. How do you make, use or sell it? Do not assume you work for a power company.
- Filligree 12y ago
  "Fairness" was never the point. The original (written, at least) intent of the patent laws was "to advance the state of the art". Fairness to the inventor never enters into it, except to the degree that such a thing is necessary to motivate inventions; if you agree with that, then the patent laws should probably be mostly dismantled.
  - throwawaykf05 12y ago
    "Advancing the state of the art" like all things in patent law, was deliberately broadly written because there are thousands of ways to do so and infinite multitudes of nuances to consider. Fairness absolutely was, and always has been, one of the main points. In fact, all property rights concern fairness, and intellectual property rights are no different.

loup-vaillant 12y ago

DanBC just gave one example, but independent invention tend to be the norm. Strike out patents, and inventions will likely flow anyway —if one keeps it secret, others will publish it. It doesn't really matter that inventors "deserve" a reward: the cost monopoly is just too high for society at large. Besides, you forgot a third option: "first to market".

throwawaykf05 12y ago
1. Independent invention may be common, but simultaneous independent invention is very rare. Look at the few dozen examples on wikipedia and compare that to the millions of inventions throughout history. In fact the USPTO moved to a first-to-file regime precisely for that reason -- less than a fraction of a percent of patents were involved in interferences. (An interference is a case of simultaneous independent invention at the PTO.) Reinventing something years after somebody already has is no great feat. 2. There is no empirical evidence that the "cost of monopoly to society is too large". In fact there are tons of economic and historical studies that clearly show the benefits of patents by comparing metrics before and after patent systems were introduced. There are also studies that show the costs these systems impose. It is, however, impossible to say if the costs outweigh the benefits because the metrics used are largely orthogonal.
- loup-vaillant 12y ago
  1. Okay, then, let's do a study about how much time does independent invention need. Then patent durations must be tuned to that. For instance, if most independent re-inventions takes 2 years, then we shouldn't grant patents for more than 3 of 4 years. I suspect that according to this criterion, current durations are much, much too high. 2. I just take for granted that all other things being equal, having a monopoly is much worse than not having it: the (diffuse) cost to society at large is much higher than the (concentrated, visible) benefit to the monopolist. I take it for granted that it is not defensible to have the society pay a significant cost just to reward a lone entity, no matter how much he "deserves a reward". Global costs must be balanced by global benefits. The very existence of an invention is such a global benefit. But unless the patent helped get the invention out sooner, that benefit is void, and the patent, unjustified. Also, apparently, we haven't read the same "tons of studies". The arguments againts patents I have read so far (Against Intellectual Monopoly was a good read), sounded very compelling —not to mention grounded in evidence. Could you give me some pointers to the studies you speak of?