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Paul Graham on Patents
volts writes "The always interesting Paul Graham has a new essay, 'Are Software Patents Evil?'. "A few weeks ago I found to my surprise that I'd been granted four patents. This was all the more surprising because I'd only applied for three...""
Its funny. The founding fathers of the USA wanted to have a patent system to protect the little guy. The little inventor that creates a new and novel item. That way a big bad company cannot steal it from him, and he never makes a dime. Now it seems that it is just used by slimy lawyers to use patents as part of an extortion scheme to shake down big companies. Alternatively a way for big companies to keep anyone from ever entering their territory. The sad part is I think it will only get worse - not better.
They are.
It does not take a long essay to answer this.
And BTW, Paul Graham is wrong when he says, "if you are against software patents, you are against all patents".
All patents have the potential for evil. But software patents are guaranteed to do evil.
Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.
Yes, software patents are evil because in the name of promoting innovation in a field, they actively destroy it.
My blog
One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general.
Wrong. Hardware patents are necessary to commercialize new products and keep innovation. Some medicine patents are also necessary, but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.
But patents for software or business methods are an aberration.
On the contrary, it's shocking and down right insulting that some of these patents have been granted. I think Mr. Graham hit the nail right on the head when he said the USPTO is dropping the ball on granting obvious ideas patents. As I've pointed out before, they've patented the progress bar and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.
You know, time and time again there are stories about the horrors of patents. But what are we actually doing about it. Are there patent protests? Are we screaming foul play in the NTP Vs RIM court case? No, we aren't. We're just sitting back and watching patents get out of hand. I know I can, as well as Paul Graham, point out the problems with patents but what solutions are there to explore?
My work here is dung.
I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:
"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."
This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees. There are other companies/people who do nothing but try to think of patentable ideas to lay claim to, and never intend to build a product; only to extort license fees from others.
There are other examples of what the author would like to believe that gloss over the terrible realities of software patents; despite the many good points he does make.
Robert Oschler - RobotsRule.com
If software were really no different from physical systems, 99% of software patents would be invalid because they consist solely of obvious (indeed, pre-existing) inventions with the words "using a computer".
How is the one-click patent not invalidated by the prior art of millions of human shopping experiences in which a customer says "One of those please", or a vending machine in which every item has its own button? Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.
And if a one-push vending machine would not be patentable, why is a one-push webpage?
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
I get the impression that the "founding fathers of the USA" were pretty good blokes with the best of intentions. Certainly very different from the politicians in power in the US today.
I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company. This was probably a difficult thing to imagine when patents were invented, since really big companies wouldn't have existed back then, and the legal system was probably also quite different. There was probably no such thing as "expensive lawyers".
A very simple discussion point
Copryright is more applicable to software than Patents.
Feel free to discuss it, but I do not beleive that any person or group, has yet or will disprove the above statement.
I'm willing to engage in this discussion, furthermore I'm also willing to keep an open mind.
"Are patents evil?"
EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."
Silence is golden... and duct tape is silver.
If companies could only do a one time patent that lasted up to three years, it'd be non-issue. The current time span (what is it, 17-20 years at least?) is far beyond the useful lifespan of the technology.
I am a strong supporter of patents, but get really pissed off at the "pro-innovation" camp (who isn't pro-innovation?) that has the audacity to draw a parallel between software "innovation" and genuine innovation in other industries. There hasn't been a radical new technology except in niche markets for some time that justifies a patent for more than three years. Not only that, but the cost to make one drug, test it and get it widely used by its target audience is probably closing in on the cost of writing several commercial applications.
If a vending machine identified you, and automatically debited the card it kept on file when you pressed the "Diet Pepsi" button then it certainly would be patentable.
However the non-trivial idea would be a vending machine that identified the user, something that's a very common feature on websites.
He couldn't be more wrong.
Software is instructions to hardware. Instructions should not be patentable. Hardware should be patentable - though there may not be a business case to make it worthwhile.
The otehr day I had to give directions to a picnic to a group of soccer players. There's really only one reasonable way to get from where they were to where they'd be going. What if someone had patented the description of how to get from Point A to Point B, that is how to get some hardware from one state to another? Does anyone think it logical that I would have to pay a royalty for telling this bunch of 13-yr olds (well, their parents) directions to get to their picnic? No? Then why are a set of directions to a collection of hardware patentable?
The directions could have included a toll road - or an alternative existed to take a more crowded road instead. Here is a pay-for-the-patented-hardware concept that makes sense. Using the toll road costs money but saves time. Using the public road is cheaper in money, but costs traffic congestion. But either way, the directions to use either road are free for any to use. And for what it's worth - the public road has many services along it that make money. The toll road, built privately by private financing, saves a few minutes. Of course, in this case, the private financiers have taken a bath. They envisioned charging a bunch for the access rights to their frontage property to service providers - but few people use their overpriced path. A better business case could be made that the toll road owners should remove the tolls and collect a royalty from the service providers that would then invest in locating on their frontage road, but hey I'm not an investor in that endeavor so who'd listen to me.
There used to be services (maybe still are) before mapquest and friends that provided directions for trip planning - you paid $10 to AAA and they told you the "best" way to get from point A to point B. No one would have thought of patenting those directions, and you were not paying for a royalty for their use - your payment was for the work someone did (at sometime) to figure out a route - but you're free to look at a map and make some phone calls to the various state traffic agencies to find construction delay zones, etc. and work out your own route.
Say you planned, some years ago, to drive from Chicago to Los Angeles. Say you glanced at a map of the time and decided to "get on Route 66 headed west and stay on it till you see the ocean." Besides a trip with about 1000 burger joints, you now have some directions. Now say you asked your friend his idea of a good route for the trip, and he'd recently done that trip by contacting AAA, giving 'em $10 and they worked out a trip plan for him based on some criteria, and he got back: "get on Route 66 headed west and stay on it till you see the ocean." Do you owe $10 to AAA for those directions? What if they (like software) were patented?
Software patents are a bad idea. They impede progress. They tell (possibly justifiably patentable) hardware how to get from condition A to condition B. If those same directions would work on someone else's nonpatented hardware, then they should be free to be used.
Paul talks about software patents being no different than hardware patents. This is clearly false. The difference, my friend, has to do with knowledge. That is, a hardware patent on what your called "Pullies lever and gears" expires and people are allowed ot build the same thing. But even before that they can pop open the box and SEE how the pullies lever and gears are put together. Software on the otherhand has no transparency at all, rather for software a person may never know how something was built ebcause the patent covers the idea, not the source code. And even after the patent expires the company would not be required to allow people to see their source code so the patented (now out of patent) software cans till not trully be reprduced.
If you look at long term effects then wouldnt it be likely for software that may be cutting edge to be lost, if say a company goes under and there is no copy of the code left for later.. and the world is left with lsot knowledge.
Yeah, this strategy might work for an US startup. But what about startups from other countries where software patenting has not yet evolved to the stage of cold war? Let's say they're doing great in their own country or even internationally. The next step? Of course they want to expand to US. And what has happened? Some US big companies might have already copied their ideas and patented them before this is happening. And there's always the patent trolls too.
From this point of view I'd say the patent system is working well in keeping away the smaller foreign competetion. Only bigger firms with the capital and strategy/vision of patenting obivious things in US has a fighting chance of surviving the system when dipping their feet into the US market.
Or am I understanding the situation wrong? I sure hope so.
Does Graham actually claim to be an authority? It seems to me that he doesn't claim to be an authority, but fanboys tend to treat him as such. That isn't really his fault. What's he supposed to do, take a vow of silence just because some kids have latched onto him?
Bogtha Bogtha Bogtha
My first reaction to the (lengthy) article was simply, "it is a breath of fresh air to read something thoughtful and insightful on software patents." As part of full disclosure here, I should mention that I have one (6,865,655) and participated in the arcane and sometime frustrating process. That said, the author's point that "fixing" the system might not be the right thing to do, either gave me pause. He might have a point.
After participating in several start-ups, I can also attest that the number of patents held directly affects your valuation. The author alludes to this, "A patent seems to change the balance. It gives the acquirer an excuse to admit they couldn't copy what you're doing. It may also help them to grasp what's special about your technology." Right or wrong, it is one of the external measurements made by business today of a start-up's worth.
Software is the most complicated thing man has ever created. It isn't surprising that the Patent Office struggles. The question is, as software professionals, will we choose to help or just stand by like "art critics"? Software engineers usually see a bad system and want to immediately "chuck it", re-write it, and go again. We can't do that here. We need to do the thing we all hate most: on-going maintenance. We could help if we engage and participate. Perhaps more thoughtful discourse like this will help us get started. My 2-cents.
I'm against software patents. Copyright provides more than adequate protection for software.
I'm in favour of hardware patents. Hardware does not get copyrighted.
Why is this moreon telling us what our views are without even understanding them in the first place?
The "hardware implementation" in that case already happened by the person who created the microprocessor, since it was designed to be able to execute any kind of mathematics you throw at it.
If you implement it using cogs or on a chip, in theory the construction of this chip or with the cogs might be patentable, but the algorithm you've implemented shouldn't be. In case of software, it's not the implementation/description that's patented (that's covered by copyright), but the again the algorithm itself. Simply describing an algorithm in a particular way should not change its patentability.
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Paul Graham says software patents are in the same category, ethically, as machine patents.
o Software can be sent to customers almost for free. Physical goods needed the protection of a 17-year monopoly because back in the old days progress was slow and it took years to build your factories. No patent monopoly, no payback. Software inventions can make money without patent protection.
o Software can use copyright protection.
o Patent examiners and juries can understand gears, wheels, and aircraft wings.
o Paul Graham says machine patents really cover the algorithms hard-coded into the arrangement of parts. No. Patents cover implementations. When the crankshaft was patented it was still legal to build other implementations of the algorithm "given linear motion l=sin(wt) set circular arc theta equal to l mod 2*pi*r and draw rotary power", as long as those implementations weren't crakshafts.
o Machines are crystallized human ingenuity and effort. Software patents are crystallized mathematics. The RSA patent, which made it illegal to do certain kinds of modular exponentiation, is different from anything in the mechanical world.
Calculating (a+b)*(a-b) is better (in terms of rounding errors with fixed point arithmetic) than (a*a)-(b*b). Knowledge or application?
Suppose I was the first to notice this fact. Should I be granted a patent on calculating differences of squares this way? I have a gut feeling that this would be patenting math. And I don't see much difference between this and any other patent on algorithms. Maybe there are software patents that aren't patents on algorithms (for example GUI stuff), but again, the distinction is blurry.
Ok, this is still on the "gut feeling" level, but I think that with the software patents banning them is just simply the lesser evil than allowing them. I think that there is rather a continuum than a sharp distinction between "knowledge" and "application", and that software is close enough to "knowledge" to make it unpatentable.
To stretch it a bit: if you are for software patents, you are for patenting math.
Incorporations were not allowed. It was all about personal companies. Each company had a local reputation that could make or break it. So few companies really grew big. And the individuals were held responsible. Now, we have Incs, which is granted nearly all the rights as a citizen and the management is not held personally responsible for anything except the very worse infractions. Even then few get major punishments. Basically, it is our creating Incs and removing personal liability that is creating the monsters.
The patents were designed to give you a chance to develop the idea before somebody with money could. You were given 7 years which is more than long enough. Now, we have changed it to decades with multiple extensions. Likewise, we have moved method patents which are the nightmare. Our current congress and lawyers has figured out how to turn it around from helping the little guy to being a money maker. But the idea of a short time (a single decade?) for a concept (not method) patents makes good sense.
I prefer the "u" in honour as it seems to be missing these days.
He makes two contradictions that completely unravel his entire premise that software patents are not evil.
First he says:
"There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not."
Then later, he says:
"Building physical things is expensive and dangerous. The space of possible choices is smaller; you tend to have to work as part of a larger group; and you're subject to a lot of regulations. You don't have any of that if you and a couple friends decide to create a new web-based application."
Hence the justification for patents on physical inventions but not on software.
He says:
"A lot of companies (Microsoft, for example) have been granted large numbers of preposterously over-broad patents, but they keep them mainly for defensive purposes."
Then he says:
"They win by locking competitors out of their sales channels."
This is the sole purpose of software patents, hence they are evil. The companies which began the patent land grab didn't do it for self defense (there was nothing to defend against). They did it to drive potential competitors out of the market. Software patents serve no other purpose.
And he thinks that Microsoft would be deterred by a boycott?
Bruce
Bruce Perens.
hmm... a software developer posting his opinions on software patents. Doesn't seem like too much of a stretch to me. Or do you really suggest that matters of innovation be left in the hands of lawyers rather than developers and engineers?
I am I ok with ETH-Zurich patenting the IDEA encryption algorithm because this algorithm IS truly non-obvious. You, me and Joe Q. Hacker are not going to infringe on this patent accidentally.
One click shopping or Apples patent on the "3 pane interface" for itunes are stupidly obvious. A person coding in a drunken fog should not be able to create an infringing program by accident (IDEA passes this test, one click and 3-panes does not).
The reason many folks (like me) jump on the anti-software patent bandwagon is a lack of confidence that anything short of abolishing software patents will be effective. Obvious patents benefit powerful corporations who can set their minions to the task of patenting belly button lint and other "innovations". With all the vested interest in bad patents it is easy to see why we are skeptical that meaningful reform (i.e. enforcement of the "non-obvious" clause) will occur. Of course if software patents cease to exist then the slippery slope of what is "non-obvious" disappears.
Mind you I don't think we will be successful in abolishing US software patents (not without a bloody "cultural revolution" a la Mao Tse Tung) but the disgust engendered by horribly bad patents naturally inspires an excessive reaction in the opposite direction.
BTW, if you think it is an accident that bad patents are issued left and right, think again. You won't find Microsoft, Oracle and Amazon spending millions of dollars lobbying Congress to properly fund the patent office. The patent office is underfunded because the people who get face time with our leaders like it that way.
>So anyway, who is this guy?
Seems he makes a living out of advising start ups on patent issues.
I've had to advise most of the startups we've funded about them, and despite years of experience I'm still not always sure I'm giving the right advice.
Possible he may have a vested interest?
"I'm a snake if we disagree"-Jethro Tull, Bungle in the Jungle
I like much of Paul Graham's work. I like a lot of this piece - lots of insight. There are a few pieces I disagree with that have already been touched on. One I would like to add is that I think he is judging the landscape a bit too early:
A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee.
That is the majority of what has happened in the past 10 years because the rampant proliferation of overbroad software patents has just begun. The market is a Darwinian environment. It selects for those who take advantage of flaws in the system and it takes time to optimize. A giant, gaping, cash-gushing flaw in the system right now is the granting of overbroad patents, and in software it is a relatively new flaw (though the flaw itself has a long and ugly history - Bell wasn't the only guy to invent the telephone - he was just the first to the USPTO). Graham makes this point to an extent saying that the USPTO hasn't adapted to software patents yet.
But he misses the correlary: Businesses have just begun evolving to take advantage of the software patent flaw. What has happened so far is only a twinkle of what is to come. Sure, Amazon got stung in the reputation department. But the patent trolls of the world have no reputation to sting. Is Eolas going to lose a bunch of customers over the active browser patent? I'm not saying Eolas is wrong, just that they won't be moderated by the environmental influence that Graham mentions regarding Amazon. The patent trolls are just starting to evolve, and they have natural defenses against the moderating influences that have kept the patent law departements of IBM, Microsoft, and Oracle in check.
And it's not going to be limited to a few fringe companies with a few fringe patents. More and more the executroids are defending companies that buy patents because they create liquidity in the IP market - enabling research heavy corps to capitalize their patents without having to bring products to market. IE: they are saying it is a good thing for the patent trolls to buy patents - regardless of whether they have any intention of taking the embodiment to market.
Paul is judging the system based on what has happened so far. But the market is just beginning to evolve. As broken as it is, the current state is very far from the invention wasteland, strewn with the bodies of a million inventors and ruled by packs of lawyers, that is coming.
Stop-Prism.org: Opt Out of Surveillance
There are many sides of this issue to take, but I'm going to only focus on one that I think most people don't talk much about.
Software Patents extend for an exorbitant amount of time relative to the industry. 17 years amounts to around 11 generations (assuming 18 month cycles) of software. That's an eternity in the software industry.
It would be the equivalent of saying that a regular patent could exist for 50-75 years. Imagine having a 50-75 year monopoly license on a drug or a way more effeciently generate electricity. Yet, we treat software patents just like that.
There are plenty of existing cases that show this. Look at the generic multimedia patents that still affect software today. The reason most of these patents sound nonsensical when we see them is because we're about 2-3 generations past when they were relevant.
Ultimately, software patents don't spur innovation. Today, they actually stifle innovation. It is getting more and more difficult for the small companies to simply write cool new software. More lawyers are involved today and it slows down the process.
And these software trolls that exist and don't contribute anything to society make a bad situation much worse.
Couple thoughts as a previous big co. acquirer and with some experience in the patent arena.
:P).
i nv_utl.htm
As a big company... I've worked for a few Fortune 500 companies that have done extensive acquisitions and as a 'big company' guy, the concept that patents are solely used as a chip for negotiations is a naive statement. When buying the assets of a business, the patents and trademarks are typically the ones that last. Many entrepreneurs (I should know as I am one now) are interested in cashing in and as a result, an acquiring business cannot solely look to relationships or know-how for value, so IP is what's left. If you really have a truly unique idea/product/service, then protecting it should be stupid-easy (and with luck, people will say it was obvious 10 years later because of its streamlined solution
Patent novelty is an issue in need of resolve... I don't believe in quantity over quality as Paul Graham might suggest, but I do believe in quantity to be successful. The process is age old - find needs, solve problems, research for current solutions and protect the best ideas. Getting quality patents should be easier now since more data is available. The USPTO and the market really do have a new set of options to consider (e.g. peer reviews, more collaboration amongst reviewers). Slashdot members can find novelty, or lack thereof, in a topic in less than 30 minutes - why can't the USPTO? With a production-line environment at the PTO, it is hard for patent agents to get a fair chance to research technology and be rewarded for deep tenure in a field. We should avoid thinking of this as 'patent reform', but rather as funding the system approapriately given the systems explosive growth.
In the end, patent ownership, like land ownership, has rights and benefits that shouldn't be reduced to a simplistic version of cold war analogies of large companies determining our fates. The patent system should level the playing field and give small guys and individuals a chance to have rights. BTW, if we should ever be worried about the small guy, now is the time. Individual inventors' patent issuance has decreased every year since 1999 - http://www.uspto.gov/web/offices/ac/ido/oeip/taf/
CSorice
Working to make ideas into reality. www.i4e.com
I have always found it extremely anomalous that most copyrights and patents today belong to publishers and employers, whereas the US Constitution specifically stipulates that copyrights and patents may only be granted to Authors and Inventors.