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09/30/2012

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Wanda

Would a simple solution just be to set very high (millions of dollars, say) patent application fees? This would ensure that only costly-to-develop technologies were patented. It would also obviate having to navigate the legislative thicket of precisely defining exactly what can and can't be patented.

It's possible this would have a chilling effect on innovation since it would concentrate (patentable) activity within large corporations, but I wonder what the net result would be. How many _actually_ useful patents come from lone geniuses, after all? There must be stats on this - anyone?

Jkdegen

I respectfully challenge your logic around the length of copyright terms.

It does not follow that because there may be an orphan problem or difficulty finding inherited copyright holders that copyright terms are "too long." It also does not follow because the present value of some income received so far in the future is negligible that all inherited copyright earnings in the future is neglible.

Professional creators frontload their personal investment with little to no guarantee of immediate earnings. For many, monetary success of their work is delayed, often past their own deaths. This is not an uncommon phenomen for professional artists. Being able to pass one's copyright to heirs is the equivalent of passing down property and wealth from professions where monetary success is not delayed.

Creative legal solutions for use of truly orphaned works can easily be found. Removing inheritance rights from professional creators and their families is the least desirable or necessary solution.

If that is truly the most serious problem with copyright, I submit there isn't a very serious problem with copyright at all.

Nora Szponar

I could not agree with this analysis more. Patents should protect innovation and not stifle it. My understanding is that a patent system exists to protect the innovator and to allow them to profit from their creativity. In the case of most industries other than software development, investment in R&D is expensive and the lead times to profitability can be very long so patent protection is a logical step.

Companies who acquire patents simply to remove competition or profit from litigation are usually not that interested in innovation or are at best buying time or at worst just not really interested in invention.

I live in Europe where software patents are generally not allowed and I hope that in general this view continues. Innovation in software is not that common, and if one harks back to Xerox Parc and their work on Smalltalk and the Graphical User Interface then most if not all IT companies should be a little more circumspect when it comes to software patents. True invention should be rewarded and protected.

D

@Zoobab Its a difference between copying a phrase or a word from a book or copying couple pages.
In programming, there are some 'best practices' and frames/bases - those should be available to everyone freely. Stealing comes when chunks of code are being copied without giving any credit, or binaries being disassembled and chucks of it copied.

I do a lot of codding, what is important for me when I deal with a program or a code done by someone else is freedom. The possibility to integrate it into my work without thinking about legal stuff: I give you credit for your work and I use your work in any way I find it fit. If I feel very thankful and I have possibility to contribute, I contribute. I expect same from other coders in return.
In my opinion, this is the best possible model of how things should be, however, it is not always possible to have it that way.

Wanda

@Jkdegen

"For many, monetary success of their work is delayed, often past their own deaths."

If so, then that implies that their work is motivated by factors other than monetary success - which works against the position you're arguing, since therefore copyright protection isn't necessary to incentivize their creativity.

"It also does not follow because the present value of some income received so far in the future is negligible that all inherited copyright earnings in the future is neglible.[sic]"

Actually it does. The alternative is to imply that a dollar received today has the same motivational power as a dollar received in 100 years (by others than yourself, no less), which is clearly an absurd proposition.

"Being able to pass one's copyright to heirs is the equivalent of passing down property and wealth from professions where monetary success is not delayed."

True, they're very similar but with an important distinction - there's a much higher cost associated with enforcing IP property rights (legal costs, stifling of innovation from derived work, etc). These are negative externalities which must be weighed against the social benefits of inheritable copyright, which for reasons already given are minimal at best. There's simply no data whatsoever that indicates that length of copyright term incentivizes creative output.

Byte Master

Did you know that "Happy Birthday To You", (c) 1935, is still under copyright protection today? That, when you stage a public performance of this song, you are required to pay royalties which are due to Warner Music Group?

To date no one has been able to provide convincing testimony as to why society benefits from the copyright on Happy Birthday To You... or any other song (c) 1935. Or (c) 1945. Or (c) 1955.

Peter Schachte

There is a great deal at stake over this issue, so it is important to get it right, but how do we judge what is "right"? Patent and copyright law were developed for a purpose, so the question should be: do they serve that purpose? I understand the original purpose of patents was to encourage inventors to disclose their inventions by giving them a monopoly on that invention for a limited time. That seems fair, but exactly what "disclosure" did Apple make when they patented pinch-to-zoom. What did Amazon disclose when they patented one-click-shopping? They have been given monopolies in exchange for something that they would have to disclose to use it themselves. They were granted patents for a concept, not an invention.

Regarding software patents, I know no one who actually writes software that believes software should be patentable. People who don't program don't seem to appreciate how many decisions a programmer makes in a day that could possibly be patented. Most days it would be dozens. It is simply not feasible to do a patent search for each such decision. It would be as if any sequence of, say, 5 or more words could be patented. In that possible world I'm sure someone would have patented "It would be as if", so my last sentence could get me sued. Who would want to be a writer in that world?

globetrotter

To all those legal eagles commenting here who defend the current patent system, I have a simple question: If vigorous patenting of software is really good for innovation in the USA, then software innovation must be at an all time high, right? Well there is no evidence to support such notion. Rather the opposite is true.

Microsoft has maintained monopoly on desktop software since 95 without improving a single thing. This situation will remain as only a large effort by a big player could develop a credible Office Alternative. Nobody is however going to bet a 100million on such a venture, because even if the technology challenges can be overcome, a viable competitor would have to contend with the 1000s of patents MS has on all kinds of essential software behaviors in Office.

Similar situation exists in search with Google, and now with mobile via Apple. A player rises to dominance and then manages to stay in power using patent deterrents or actual litigation. Innovation goes to a veritable standstill.

Nobody in the software development community asked for the patent law to be reformed to encourage software patents. Truly great software that does really useful things is so hard to replicate (without verbatim copying of the code) that it does not need patent protection. This whole farce has been engineered by patent lawyers advising inept and gullible public officials in the Patent Office who did not understand that you should not invite parasites of a system to a system design exercise.

Having patent lawyers even be part of the DEBATE about software patents, is like having software virus makers sit at the design table for Operating System security features, or like having the oil industry be part of the design of a transportation system, or like having doctors be part of health care system design, or the food industry to define standards for organic food, or Wall Street bankers write banking regulation ...or... you get the point.

The problem is that in the USA there is a "tradition" of government trying to be business friendly and have regulation and law not "offend" existing business interests. Nefarious business players take advantage of this by showing up at the design table and inserting money making schemes into legislation.


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Judge Posner, with all due respect let me suggest that as between patent law and copyright law, it is the former that has remained closest to its constitutional roots. Protection periods have remained relatively stable since the original 1790 Act, subject matter eligibility has remained likewise, and the change to examination from registration has been the rule since about the 1834 amendment to our patent laws. From my perspective the large majority of "problems" associated with patent law arise not from the law itself, but from its execution by people, principally the limitations associated with patent office resources and a judiciary that has "interpreted" the laws' provisions in scattershot fashion.

Jkdegen

@Wanda

All work is motivated by factors other than monetary success. It is only professional artists who have to suffer the uninformed disdain of armchair theorists who think OUR work should be about "more than just the money." Please explain what exactly is absurd about a person wanting to pass property of value to her heirs. That is what copyright on a delayed success is - property of value.

To someone who actually works and makes a living in the cultural sector, your assertion that there are high societal costs involved in protecting copyright is insulting and more than a little ridiculous. Copyright is about respect first, and enforcement only when necessary. There would be zero legal costs involved in enforcing my own copyright if it was simply not infringed. Infringers need to answer for the legal costs, not copyright holders.

As to stifling innovation from derived works, new work is derived from copyright-protected work every single day. It is done so within a respectful legal framework that recognizes the rights of the original creator. Far from stifling innovation, copyright encourages it.

You want data on that? Ask an author whose book has been optioned for film. Better yet, ask a child whose dead father's book has been optioned for film.

Screech

Clearly, the actual purpose of patent "protection" is not protection for the inventor.

The purpose is to require disclosure to protect society from inventions being kept secret. Keeping novel inventions secret would be bad and would not help society. The framers of the constitution knew this.

In exchange for full disclosure the inventor gets a limited period of exclusive rights, after which the patent is public domain to be used by anyone. That helps society.

As was touched on the contrast between pharmaceutical patents and software patents couldn't be more stark.

A programmer can develop something ridiculous that could be gotten through the simple minded examiners at USPTO in 15 minutes at a cost of $11. This actually happens.

It can even be obvious and non novel because the examiners just don't know. As they are attorneys they are comfortable with the "let the courts work it out" approach they have taken.

But that approach badly damages innovation and harms society.

Inventors often don't have the millions of dollars it would take to get a patent overturned because it's just obvious or even stupid. It happens every day.

A pharmaceutical invention however might require 5 or 10 years of research, experimentation, testing to bring to market. Hundreds of millions of dollars.

Without patents little of this would happen, investors would invest elsewhere. Clearly this is not in our best interest.

Jdebeer

Judge Posner,

You say, "The most serious problem with copyright law is the length of copyright protection." And that the next most serious problem is courts' narrow interpretation of fair use. Those are very serious problems, I agree.

I have a genuine question about your triage, however. Have you thought about another issue: Where among the problems with copyright do you rank the threshold for protection, i.e. that copyright applies (broadly and for a long time) to all original works without application, registration or notice? Do you think the inefficiencies caused by that feature of copyright law are as problematic as copyright's term and scope?

Sincerely,
@jdebeer

C

Globetrotter -

Re: "Having patent lawyers even be part of the DEBATE about software patents, is like having software virus makers sit at the design table for Operating System security features, ..."

That is an absolutely terrible analogy. That's actually a huge understatement. I agree that patent lawyers should not be part of the debate of software patents. Actually though, to be fair: patents in software should be very limited if not non existent. I'm not talking about commercial software having to be purchased. I'm talking about actual algorithms and flow of control in a program. If this was allowed and abused, it would be devastating. I will get back to that later in the post.

However, the malware creators part of your claim is terribly misinformed.

You do realize that many people who have created what (many) would think of as viruses (when there's far more than that: backdoors, viruses, worms, others ...) would actually benefit the operating systems, right? I can think of countless examples. A certain backdoor family by a certain group (from the 80s and they're still around today) made aware to many the risks of a certain family of operating systems (say, Windows). Specifically they made a certain hole (ok, holes) public. Many may say that's bad, but here's why it is good:

Many times exploits are made public AFTER the person finding the hole the exploit takes advantage of had TRIED to let the developer(s) know of it. Many times they simply ignore it and downplay the risks. Microsoft has done this many times, for example, and the end result is more risks to users. You can say that these groups/people/whatever are the risk but that clearly shows that you don't have much experience with security. Which would you prefer? A nasty hole NOT being known and not being made public (and therefore NOT fixed), or the company is forced to patch the hole up? You're playing the dangerous game of security through obscurity. The hole exists and just because a company or user of said software does NOT know of it (or thinks no one else knows of it; even more scary), does not mean anyone else will not either. The fact is that is not security at all. Think about what happens if the hole is not fixed (and ignored) and then someone who has devious intentions finds it?

There is a great deal of wisdom in the question of: how can you protect your own network if you don't know what the attack vectors are, how they may be used (and when), and in general if you don't have any idea how someone might break in?

A more recent example: Sony. They failed big time.

Keep in mind computers were not made with the security in thought. Same with the networking protocols we use on a daily basis. There's been many protocols that have been obsoleted and/or replaced simply because of serious security implications. Who do you think actually discovered them? People who understand the internals of the said target AND who understand the flaws in the target (i.e., they see much more than just the original intention of the target; they see problems in it).

As for Posner: thank you for bringing this up. It is crazy how many lawsuits are being tossed around. Apple is an example of the more ridiculous ones, especially when you go back to Steve Job's days with Atari (e.g., how he cheated his friend Wozniak out of a lot of money and it was Wozniak that did the work). Or what about Jobs' quotes about stealing?

"We have always been shameless about stealing great ideas." (1996)

"I'm going to destroy Android because it's a stolen product. I'm willing to go thermal nuclear war on this." (2011)

The hypocrisy of Jobs right there is only one example of many. I can think of so many it makes me ill. He knew full well (and so does Apple in general) that technology evolves and to abuse that simply for profit is disgraceful. Not only does it stifle innovation, it's unethical and it is not helpful to the world. Apple's idea that their 'tap to zoom' functionality is something that should be protected is ridiculous. They most certainly did NOT invent the touch screen. And what would their tap to zoom be without a touch screen? It would be a screen, you could tap it all you want... but no matter what you want, that "magical" zoom won't happen any more than money growing on trees if a person wishes for it enough.

Oh, and yes. It is indeed true I cannot stand Apple and I don't like Microsoft too much either. So the fact I've mentioned those two may make some think I'm biased. But to that end, even the operating systems I use (and I do indeed program too) has had bad companies. For example: Caldera Linux contributed to the GNU license of the linux kernel. This means they can't charge licensing fees. But then when they changed to the company SCO, what do they do? Well, for one example: http://en.wikipedia.org/wiki/SCO-Linux_controversies#SCO_and_the_GPL

I was also going to write about patents and software but I think if I do I'd rather save that for another time and place. This post is longer than I intended by far. I can say though, that with around 2 decades of programming (and other things related to computers and the internet), that to protect an algorithm or some logic would be devastating: those who don't know what I mean would actually not be reading this IF these types of thing were patented and then abused in court. No one would, even. It's that simple.

Account Deleted

Judge Posner is right.
As a general remark, I would say that the legal protection of intellectual property faces a paradox - whilst aimed at supporting and promoting innovation, it failed to innovate and adapt itself to the modern world !

My first remark is that IP rights are exceptions from the principle of free competition - monopoly power for a determined period of time.
A long established legal principle states that ”exceptio est strictissimae applicationis” - exceptions must be construed narrowly. I do agree, however, that granting this monopoly power may be a good incentive to innovate. Besides, in lot of cases, a legal monopoly (exclusivity to use certain IP) would not result in an economical monopoly.

Coming back to the patent system and its weak points (almost the same all over the developed world, not just in US), the following essential changes should be adopted:

1. Patents should cover aspects which are significant improvements compared to the previous situation, resulting in enhanced utility and / or increased efficiency. Breaking-through innovations are rare, which might be normal - revolutions cannot happen every day. But incremental innovations should be visible with the naked eye, not at the microscope ! And - IMPORTANT - patents should cover substantive innovation and not design details not connected to utility - shinning surfaces or round corners. PATENTS CANNOT PROTECT GLAMOUR !

2. The duration of the legal protection should be limited in time, depending on the type of the patent and the efforts necessary for its creation, as Judge Posner suggests. In a world of technology where an innovation becomes obsolete - or common standard - in a couple of years - durations such as 10 or 20 years are both ridicoluos and counter-productive.

3. The acquisition of IP rights should be subject to certain conditions, such as limiting the number of essential patents which may be acquired by a single entity. It is worth noting that ”big stars” of the software and hardware acquire now more patents than those filed directly by them and which are the result of their own research - see Apple (it acquired recently aprox.6000 patents from Nortel, in addition to its own 3800 patents !) or Google (760 patents in US + aprox.1000 patents acquired from IBM).

The frenzy to acquire and own patents bears two huge risks:

- that the pace of innovation will slow down as long as companies might find it easier and safer for them to defend - in court - the territories delineated by the patent protection. The biggest success of Apple, for instance, in 2012, was in a court, not in the market, where the new iPhone was just ”a” new iPhone and nothing more.

- that the number of conflicts among patent holders will increase, resulting in full-fledged wars (unlike other commentators, I do not believe that there are in the present real patent ”wars”, rather ”pinches”). When the whole map of the technology world is occupied by some kind of patents, seen as impenetrable borders, conflicts will be impossible to avoid and will become more damaging.

The only alternative to such ravages would be also inconceivable - patent holders making peace, to the detriment of the consumers and, of course, of innovation.

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ValentinMircea | 10/03/2012 at 01:36 PM:

Merely FYI, there are several differing types of patents, one being know as a "design patent" (which, BTW, has a shorter term than a "utility patent". The former are intended to cover non-utilitarian features associated with a product.

Wanda

'Please explain what exactly is absurd about a person wanting to pass property of value to her heirs.'

Nothing! Everyone always wants more. But the issue isn't what people want, it's what is required to get them to work. And to the extent that creativity is incentivized by monetary considerations, an uncertain 70-year-delayed payoff has a negligible incentive. Humans have a nonzero discount rate.

Since you probably don't know what 'discount rate' means, another way to think about it is this. Imagine that the payout for a particular copyright is $2M total: $1M now and $1M in 70 years. Now assume that the 70-year payout is removed. How much would you have to increase your present payout to compensate for that? If you assume a modest 6% return, you would only need an additional $16k. That's only 1.6% more! If the legal infrastructure necessary to protect copyrights for 70 years subtracts more than 1.6% from the efficiency of the system, then everyone would benefit from removing it, since the present-value of your copyright would be increased to compensate.

That's an example of the time value of money and really is a concept you should familiarize yourself with before you wade into economic arguments. It's why payments expected to be received in 70 years provide 1% of the incentive that payments expected to be received tomorrow do (actually far less than 1% since humans routinely have unjustifiably high discount rates) and it's why Posner is perfectly justified in considering far-future copyright payments negligible.

'It is only professional artists who have to suffer the uninformed disdain of armchair theorists who think OUR work should be about "more than just the money." '

So it sounds like there might be some, uh, personal issues getting worked out here so I'll just say this: if you're worried about respect then that's fine, but policy can't help you. Respect can't be legislated -- you'll just have to make high-quality work that your peers can admire and then hope for the best.

To the extent that creative output depends on non-economic factors, it is beyond the scope of this discussion. To the extent that it CAN be influenced by economic factors, those factors must be examined in their entirety -- which means balancing the macroeconomic benefit they confer against the macroeconomic costs they impose. Regardless of who is at fault, litigation is macroeconomic cost; it decreases the productivity of the economy. If the costs of particular legislation outweigh the benefits, then it should be repealed. And while that's not yet necessarily the case for Intellectual Property laws, it certainly is a question worth investigating.

Neilehat

Let's not forget that a Patent or Copyright does not exclude Licensing and the collection of fees for the use of that Patent or Copyright. One of the prime reasons for the purchase of Patents or Copyrights is the Licensing right granted or by eliminating it (fees) over the long term (a clear business decision). Then there is the purchase strategy to eliminate potential competition and innovation (another clear business decision). It's all about profit and the best way to maximize it. Innovation and fairness is of little import.

Terry Bennett

Let's say you get an idea, build a working prototype, and apply for a patent. You search the prior art, you send the PTO an obscene amount of documentation, you argue back and forth for a few years with an examiner or several, you navigate the "103-112 squeeze" (wherein if you don't say enough they'll say you are not teaching anything and if you say too much they'll say you are stating the obvious), and you eventually are told that your patent is pending, then in a few more years it gets approved. At this point you have accomplished approximately diddly. Your patent is presumed valid, but you still have to look for violators and enforce it yourself in court, and you are still subject to attack by anyone who wants to copy your product and re-argue whether the PTO was right when they gave you the patent. So, let's stipulate that even with the very recent changes in the law, which attempt to bring us into line with other countries, the patent system is substantially dysfunctional.

Back in the late 1780's, the thinking was that patents would encourage collective innovation, because very smart people would disclose how they performed their magic, and after they reaped their reward for a few decades the rest of us goobers could look at their drawings and learn, so there would tend to be a progressive leap forward every 17 years or so in an affected industry. The mistake in this thinking was that the founders grossly underestimated the now-legend Yankee ingenuity that drove our innovations. We had and later attracted a lot more smart people than they ever expected. Whereas in the European societies we emulated the innovators tended to be part of the noble class who had the time and resources and education to design new things, the U.S. was egalitarian and innovators of all social strata rose to the top. Patent has thus probably been a net loser for us since day one. We would have been just fine with a dog-eat-dog free-for-all.

Trade secret is the opposite of patent. Instead of telling the world how you do it and making as much profit as you can for 17 years, you can try to hide how you do it and reap for as long as you can before others figure it out. (Coca-Cola is the most famous example.) The problem with this scheme is that many inventions are obvious once you see them. Judge Posner mentions some advantages held by the first to market, but as he also notes these are offset in many products by the enormous free help of seeing it done - the second mouse gets the cheese. The lack of protection creates enormous risk for a person who invests years trying to bring an idea to market, and probably discourages some inventions. (I know it discourages me.) In net, maybe we’re still better off without patent. The costs of the process, particularly including post-patent enforcement, make the benefits ephemeral for most inventors, for whom the patenting is more work than the inventing.

The most important reason for continuing patent and copyright protections in our time is the fundamental American outlook toward innovation. Deep down, it feels right to us for a person to be rewarded for thinking of a better mousetrap, or writing a song that catches our fancy. People in many other countries (e.g., Britain) tend to think more socialistically, and may not feel this way. Clearly, the system needs plenty of tweaking, but most of us will continue to feel that there needs to be some way to funnel the reward to the responsible party.

The PTO could be replaced with a web server. 4 out of 5 patents never get used. The only useful thing the PTO does is make pronouncements on who had it first. We could simply assert the right to patent by uploading, without review, and when an actual controversy arises we’ll look at the timestamps.

Neilehat

Well now, weve looked at "Patent, Copyright and Trademark" from the angle of Macroeconomic policy, to the details of Licensing. Perhaps a better understanding will be gained by looking at a whole nother realm of Intellectual Property as used by Business and Industry known as "Proprietary Information". This is stuff that is so important to the production, operations and profitability of various Companies it is normally locked away in "the vault" and only to be viewed by those employees or contractors with a need to know. Usually accompained by a Company Attorney and Security. This is another device utilized to secure innovative and vital designs and information that the "Patent Process" would expose to one and all. Once again this strategy is a clear business decision. It's all about profitability and the ability to maintain it over the long term. So one can fight over "Patents" or just lock it away in the vault...

Jkdegen

Alright, Wanda, while I'm familiarizing my poor little brain with economic concepts like discount rate, how about you try understanding "delayed success."

A $1 million payout now is not a delayed success. That's what most people would think of as an immediate success. You'll have to do your macroeconomic calculations again, you know, after you've "familiarized yourself" with the real world of professional artistic creation.

And while you're at it, try coming up with a convincing argument to explain why litigation is the inevitable result of copyright protection. Is every movie deal struck today litigated first?

The respect I refered to was for the law, not for the artistic work in question. This discussion would be a lot more productive if you responded to what I actually said.

Oh, dopey artists.

Rsachs

First, I'll wear the badge of dishonor here: I'm a software patent attorney. I have a Masters in Software Engineering. I've represented dozens of software startups since 1992, including some you know: Google, Facebook, Excite, Intuit, Dropbox, as well as Dreamworks, Harrah's, McKesson, Wells Fargo; of course I’m not speaking for any of them here. I agree that that the patent system is far from ideal--patent terms are too long, the presumption of validity is too strong, and patent examination is not what is should be. But Posner's views and the comments here reflect some fundamental misunderstandings of the patent law and facts on the ground.

KP says: "As a computer programmer, I'm scared to start my own business developing software. You might say, ’Oh, but look at Facebook and Google, who got started in the same atmosphere as you.’ That's true, but they're just outliers. Most software companies don't make it, and I'm terrified of getting my ass sued."

The *real* likelihood of being sued as a software startup is close is 0%. What you see in the papers are the big battles between the major players, and then the NPEs. And even the NPE's don't target startups because generally they are not profitable, so there's no money to be had. And Facebook and Google are not outliers. They were just like every other startup, and they faced the same risks as everyone else. And KP is right: most software companies don’t make it—but not because they get sued for patent infringement. I’ve NEVER had a startup client go under because of that. The overwhelming majority of my startup clients have NEVER RECEIVED a demand letter or a threat of litigation. The few that have were much latter stage, profitable, and on the verge of going public. So stop using the excuse of being terrified of patent infringement and get on with it.

Peter Schachte says "Regarding software patents, I know no one who actually writes software that believes software should be patentable. People who don't program don't seem to appreciate how many decisions a programmer makes in a day that could possibly be patented."

Two big misconceptions here: First, the suggestion that every decision a programmer makes is possibly patented is wrong. Yes, there are lots of software patents. But you're not going to be sued because you defined a class in a certain way, etc. First and foremost--even assuming something you do in code is patented--whoever holds the patent on a low level programming decision would have no idea that it was being implemented in a given product. Even if you open source your code, the notion that some patent holder is going to scour through Github to find a few lines of your code is fantasy. And the vast majority of software patents are not on programming decisions. You are much more likely to be sued for patent infringement if you come out with a new kitchen gadget, then if you start an online social/ecommerce/crowdsourcing website and mobile app.

Peter also says that no one in the software community wants patents. Well, that's belied by the fact that I (and many others) get approached all the time by folks who are the CTOs and CEOs of software companies--often before they have even been funded--who believe very strongly in getting protection for their software inventions, and simply because some VC told them to do so. Indeed, at least half of the time I tell them that what they want to patent is already known or likely to be known in the prior art.

What the anti-software patents folks don’t address is this: How is software, as a human artifact, any different from other types of artifacts? If you start with first principles, that patents protect human-created artifacts that provide a useful function, then you cannot legitimately exclude software from the class of "things humans create." Humans create artifacts to solve *functional* problems. From a spearhead to kill an animal, to a furnace to melt metal ores, to a printing press to print books, to the $1B Instagram app to take pictures on your cell phone, what is valued by humans is the functionality, not the hardware. Creating new functionality is an essential human activity. And software is simply a mechanism for instantiating functionality.

I’m not going to recount the entire history of computers (see http://en.wikipedia.org/wiki/History_of_computing_hardware) so this is going to be a gloss: In the early days of computers, they were programmed by manually reconfiguring their memory and logic circuits to achieve a specific functional operation. With the development of general purpose computers and microprogramming (Wilkes, 1951) came the ability to configure the logic and memory of a physical machine with stored instructions. Indeed, programmatic control of machines goes back into the late 1800s with Jacquard, Babbage, and Hollerith. Programming code has evolved--I started programming using punch cards on a HP card reader--but no matter who high level the language, at the end of the day, it turns into electronic signals that control a physical machine. And the control of physical machines to achieve useful functional ends is precisely the kind of thing protected by patents.

The other problem is that of hardware/software equivalency: Anything done in software can be identically implemented in hardware. It would be anomalous to say that you can patent the hardware version but not the software.

The complaint against bad patents is legitimate, but not restricted to software patents. Let’s be clear and separate the two questions: 1) What *kinds* of things should be patentable and 2) what are the *standards* for deciding something is worthy of a patent. There are tons of very bad patents on say chairs, or automobiles, or bicycles. But you don't hear a clamor that chairs, automobile components, or bicycles should not be eligible for patent protection. In other words, saying there are bad software patents is not an argument that there should not be any software patents.

I agree that patents are not *needed* for software innovation. But then that's true as well for patents on lots of stuff, including chairs, cars, bicycles, etc. People are going to invent regardless. So if you are going to take the line that you should not have patents for technologies that don't need the “incentive” to innovate, then apply that reasoning across the board, don't pick and choose just because you don't like software patents. To do otherwise is an ad hoc, results driven analysis, not a first principles approach.

dboreham

AnneBarschall wrote:

>Moreover, the idea that mathematics is not an invention also needs to be overturned.

For me this marks the "jumping the skark" moment for the patent lobby.

Kaj Magnus Lindberg

@Neilehat, who wrote: "Perhaps from viewing the problem from this perspective, tighter Legislation is warranted"

-- Your perspective is rather unrealistic though, since you ignore all reasons why software patents are bad, and focus only on other cases.

From my point of view (I'm a software developer), software patents are fairly similar to patents on book stories (e.g. a "female hero" and a "dragon and knight" patent): they kind of restrict your freedom of thought. -- For software patents, tighter legislation would be rather bad, but fortunately I don't live in the US. And I'm thinking about avoiding that country, and focusingon India instead (when I'm marketing a service I'm building) , where sofware patents seems to be disallowed.

Prometheefeu.wordpress.com

You're making a mistake when looking at movies. Specifically, you're making a static analysis on the price. Part of why action movies cost so much to make is because of copyrights.

Lordvalent

You have to also recognize contributions to any technology. The USA spends a lot on research. Shouldn't the US get something back for what the taxpayers spend on research? Shouldn't we require the Pharmaceuticals to give the gov. a piece of the action? And, by this, we reduce the tax of the ordinary citizen.

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