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...""

Comments

Patents are not what they are supposed to be.

[IntelliAdmin]

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.

Re:Patents are not what they are supposed to be.

[rainman_bc]

Admittedly, these lawyers frequently obtain these patents from the little guy.

Sometimes it's just easier to sell your patent than it is to litigate.

Re:Patents are not what they are supposed to be.

[Waffle Iron]

The founding fathers of the USA wanted to have a patent system to protect the little guy.

I don't think that they had "protecting" anybody in mind. What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died. Perhaps unfortunately, the chosen means to this end was by granting time-limited monopolies.

The problem is that the enticement part has become the all-consuming focus of the patent process, rather than the disclosure of useful trade secrets part. Now a lot of people think that patents are a form of property right a sacred as the rights to their favorite pillow, and the patents themselves most often have obfuscated claims that reveal little if anything that isn't obvious from a quick look at the protected products themselves. They extrapolate from the "protection" side effect of the way patents were implemented and mistakenly assume that that was the primary goal all along.

The inventor now gets far more than the original intended benefits (because he can now often shake down a large company for the profits to all of their business), without having to give up much of anything in return. Much like agricultural market subsidies, patents have become little more than a wasteful government entitlement program.

Re:Patents are not what they are supposed to be.

[nadamsieee]

From the US Constitution, Article I, Section 8, Clause 8:

Clause 1: The Congress shall have Power...
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Yes

[pieterh]

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.

bzzzzzzzzt - wrong!

[Spy der Mann]

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.

Re:bzzzzzzzzt - wrong!

[Halo1]

All the arguments for hardware patents can be made for software patents. All the arguments against hardware patents can be made against software patents.
To object to one but not the other is inconsistent

Yes, it's really annoying, this inconsistent Federal Trade Commission, saying that patents do not have the same effects in all industries. In a sense, you're somewhat right, because they note that patents have little effects as driver of innovation in the semiconductor industry too.

Or maybe the National Research Council, claiming that the software industry is quite different from traditional industry sectors for various reasons.

Or maybe the Max Planck and Fraunhofer Institutes? (the latter even own some patents on mp3 compression)

Good but idealistic article

[robotsrule]

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.

Re:Good but idealistic article

[magetoo]

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.

Yes, and he mentions them a page further down. You did read the article before posting, didn't you? Of course you did.

Stupid, Stupid, Stupid

[gowen]

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?

It wasn't such a good idea

[babbling]

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".

Re:It wasn't such a good idea

[SlamMan]

<a href="http://en.wikipedia.org/wiki/British_East_I<nobr>n<wbr></wbr></nobr> dia_Company">British East India Company</a>

Re:It wasn't such a good idea

[Bogtha]

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.

So what you are saying is that the combination of these two things is bad:

• Patents
• Large companies being able to wield an inordinate amount of legal power over individuals

I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.

Re:The US Patent Office is very generous . . .

[servoled]

35 USC 101:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title [35 USC 1 et seq.].

What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.

Software - Patents & Copyright

[erbmjw]

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.

More interesting than Paul Graham

[gowen]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

Anyway, I heartily recommend you read this fine demolition of Graham's opinions on painting before giving this dilletante blowhard any of your copious free time.

Re:More interesting than Paul Graham

[Bogtha]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film...

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?

Patents-

[dteichman2]

"Are patents evil?"

EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."

Paul Graham

[thrillseeker]

makes the statement in his article: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general."

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.

Breath of fresh air

[bsandersen]

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.

His analogy of the USPTO as a loose woman...

[ameline]

It's a very good article -- and while I've not yet finished reading it, I loved this quote;

  "...the USPTO in effect slept with Amazon on the first date."

As a side note, if any USPTO examiners who are assigned to one of the several applications I have pending are reading this; I will still respect you in the morning -- no really, I will. :-)

Actually, there is a difference: Copyright

[Jerf]

Actually, there is a good distinction you can draw between software patents and conventional patents that is strong enough that you can't automatically infer that being against software patents means you are against all patents: Software patents are the only things I know of where the patented objects are also covered under copyright law.

I go more into depth about this elsewhere, but the short answer is that we shouldn't be surprised that patents, balanced for one type of use, and copyrights, balanced for another, make no sense when both are covering the same thing, since they were never designed to do that.

Obviousness is a real problem too, of course, but that's more a practical problem, one that could be corrected by more aggressive denials by the PTO. This is a fundamental conflict.

Knowledge vs application

[archeopterix]

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

Ok. So (a*a)-(b*b)=(a+b)*(a-b). Knowledge or application?

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.

Fallacy

[Bruce Perens]

Paul Graham thinks that you won't be sued until you have money. But that's backwards. Suing people who have the money to defend themselves is much more risky than suing the little guy. That's why so many suits are against companies that don't have any choice but to settle, because they can't afford to continue the suit to a verdict. The worst software patent lawsuits are not brought to make money at all, but to restrain another party from doing business. A suit against Open Source developers would not seek to collect money, it would simply seek to shut them down.

And he thinks that Microsoft would be deterred by a boycott?

Bruce

Re:Fallacy

[Jobe_br]

Entirely. Furthermore, the argument of patents wrt innovation seems to ignore an important point. Without patents in software, a new feature (such as one-click) would be replicated, improved, or would spur new ideas, without fear of any recourse. Same would go for any other thing - I cannot think of anyone that would see one-click and think "hmmm, now HOW did they do that?!" - a detail that the patent would reveal. Software patents are being used to protect conceptual ideas (very tenuous ones, at that) that have no secret (hence trade secrets being useless). Nobody cares exactly how Amazon implemented one-click (unless I am mistaken, please correct me if you do). That's the difference I see with mechanical patents. Perhaps, if someone came up with a mechanism to cut diamonds that yielded less waste, then to replicate this, you couldn't avoid implementing the same mechanism. That is, unless you came up with something entirely different, that had the same effect (high quality cut, low waste). And as far as I understand patent law (IANAL), that would be O.K. Different mechanism, same end-effect, no problem. Not so for software. Different implementation, same end-effect (one-click ordering), and you're bound by the patent.

That's a problem and I think Paul overlooks this.

That said, Paul's post on this is an excellent essay on the topic from a number of different angles.

I agree, "non obvious" is the problem

[jonathan_95060]

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.

Valuation & a Patent's Value

[csorice7]

Couple thoughts as a previous big co. acquirer and with some experience in the patent arena.

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 :P).

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/i nv_utl.htm

CSorice