Why we need to abolish software patents

http://techcrunch.com/2010/08/07/why-we-need-to-abolish-software-patents/

by cwan • 16 years ago

143 59 16 years ago

benofsky• 16 years ago

I have never really understood (or perhaps know where I stand) on the issue of software patents, this article did not help.

"What is most alarming is that patent office automatically publishes applications online after the 18 months ... This effectively undermines the entire purpose of the patent system: the patent office is charging the applicant serious money for giving it the privilege of giving away their commercial secrets."

You know that going in (that you might not get a patent but that it will be published), it's a risk, but the whole idea is that great ideas will be released into the public domain with enough information to be implemented.

"They had the concept right, but they surely never conceived of Amazon.com patenting clicks in an online shopping cart and methods for having an online discussion"

This is an issue but in my opinion an issue with the patent office granting patents which through granting do not further innovation in the slightest (rather than it being software). A counter to this example would be perhaps, MapReduce [1].

[1] http://en.wikipedia.org/wiki/MapReduce.

smeatish• 16 years ago

Rather than abolish software patents, I'd like to see better precedents be set. A software patent should be held to the same fundamental tests (non-obvious, novel, unique) but the bar should be much higher for software because the domain is so fast changing. Many software patents seem very obviously superseded by prior art to anyone in the domain.

I would also love a fourth fundamental test to be added - cost of development. The fundamental purpose of patents is to encourage innovation by allowing investments in developing new technology to be recouped. Devising and implementing a one click shopping system is not a substantial investment.

Unfortunately measuring the "cost" of development gets very complicated and subjective very quickly - accounting for money spent on failed attempts, human capital invested, opportunity cost, etc. Amazon could claim their whole development team was trying to think of innovations and one click shopping was the culmination of all of their efforts.

prodigal_erik• 16 years ago

This. If licensing your patent costs more than having each participant in the industry independently recreate the invention, your patent served only as a tax on the industry rather than a contribution.

dpcan• 16 years ago

How about a world with no patents at all and let's just see what happens.

kenjackson4• 16 years ago

The world of SW is largely already a world w/o software patents. Very few companies are effected by SW patents. And even startup companies generally spend very little money on patents.

And in my experience, I've never met anyone at a startup company who didn't implement a technology due to a patent. But I have certainly worked with large companies, MS, IBM, HP, who have not implemented a technology due to patents.

It seems like a world w/o patents would simply strengthen MS and IBM. And probably have no net effect on startups, except in the unlikely event they do something innovative, but is somewhat easily replicated once seen.

akeefer6• 16 years ago

Software patents affect small companies when they get sued by big companies or patent trolls. It happens all the time, and when it does there's basically no defense unless you have a huge patent portfolio and can countersue . . . which, if you're a small company or the other side is a patent troll, you can't do.

sprout• 16 years ago

>It seems like a world w/o patents would simply strengthen MS and IBM.

How so? One company off the top of my head is TomTom that would benefit to Microsoft's detriment (VFat patent litigation; TomTom lost, MS won.)

IBM's hegemony is largely predicated on its mainframe-related patents. If anyone could write a clone they'd have their lunch eaten by FOSS same as Sun and the other big Unix vendors.

gaius5• 16 years ago

Patents are broken in implementation, not as a concept.

nova• 16 years ago

Maybe a non-broken implementation is not possible.

akeefer6• 16 years ago

I agree, but what's the chance that we'll ever get a non-broken implementation? If someone really tries to fix it, that would be great, but what are the odds it'll really be fixed instead of just being broken in different ways? From my perspective, ExpectedChanceOfBrokenness * ExpectedCostOfBrokenness > ExpectedCostOfKillingThem . . . so the probabilistically optimal course is to just kill patents for software (and business methods), even if it's not the absolutely optimal course.

kiba3• 16 years ago

Sometime, you don't fix what's not broken. Patents are probably a solution to a non-existent problem that everyone assume to exists.

krakensden• 16 years ago

I think it might be more accurate to say the legal system is broken, because that's what makes patents so dangerous. You can't afford to participate in the legal system unless you have lots of money, and patents are just one way incumbent companies can force their competitors into litigation.

kjrose4• 16 years ago

This is true about many ideals. See socialist, laissez-faire capitalist, and communist supporters for arguing points.

Hell, see any utopian idealistic system. The excuse is the implementation always fails. How many times does implementation have to fail before we start to question whether it is simply possible to implement it correctly and whether it's worth the cost and frustration in the first place?

cesare• 16 years ago

Somewhat related:

http://news.ycombinator.com/item?id=1583938

jacoblyles2• 16 years ago

Some economists argue that this would be a good idea. See:

http://www.econtalk.org/archives/2009/05/boldrin_on_inte.htm...

andreyf• 16 years ago

Ack. Just the size and variety of industries whose operations are defined by patent law (medical research, for example - both drugs and equipment) makes this kind of proposition a lot more complicated than we can comprehend, I think.

atomical2• 16 years ago

The fact that companies have created software, patented it, and sued large companies that use their technology gives me pause. Without software patents the software industry will become like the consumer products industry where inventors are ripped off by large corporations.

I think the VC's who are pushing this have an agenda.

ecaron• 16 years ago

If this was what was happening in the majority of cases, I would agree. But it isn't - big companies frequently buy patents just to go after and shut-down/settle with smaller companies who are posing a threat. Like Apple against HTC. Like Microsoft against Salesforce.com.

If there was a shorter life span, or stronger enforcement over patent squatting, fewer people would be standing against it. But saying the VCs pushing this have an agenda, without citing a single source, and thinking that patents do anything now other than pay lawyers and slow innovation, is narrow-minded.

atomical2• 16 years ago

The majority of cases that you read on Tech Crunch?

kenjackson4• 16 years ago

Let me be clear. You think Microsoft has sued more companies than smaller companies have sued Microsoft? Wow, that's some serious revisionist history. Just in the past two years MS has been sued by at least seven companies -- and I don't recall any of them being trolls.

kjrose4• 16 years ago

Software is easily copied and manipulated enough that small businesses which are flexible and innovative will remain competitive against larger businesses which may steal some of their ideas.

The only real concern to me is that smaller businesses don't have the sales and marketing team as the larger companies.

Right now, large businesses can flatten smaller businesses (See MS vFAT decision) if they even remotely become competitive through patent lawsuits. It is very rare to happen in the reverse.

akeefer6• 16 years ago

One other thing to keep in mind in this debate is that it's expensive to defend yourself from a patent lawsuit. For example, this blog (http://rpxcorp.com/blog/?p=129), whose accuracy I have no idea of, claims that the average total cost of a patent lawsuit where the potential damages are under $25MM is $3.1MM to defend yourself, and $6.2MM if the potential damages are over that number.

So there are several parts to this equation. 1) Creating any bit of software involves thousands of "inventions," any one of which could be patentable. 2) Patents are granted for things which fail the obviousness test, where the chance of someone else independently "inventing" the same thing is essentially 100%. 3) The damages for violating even one patent tend to be astronomical and totally out of line with the contribution of that "invention" to the software in question. Out of 2 million lines of code, if one total BS patent covers 20 lines of that code, why are the damages likely to be basically equivalent to most of the revenue for that product? 4) The cost of defending against a patent lawsuit is enormous.

In other words: if you're a small software business, then there's pretty much a 100% chance someone else can sue you for patent infringement if they want to, losing the case will kill your company, and trying to defend yourself will severely drain your resources and could kill your company anyway.

There's no part of that that helps or encourages innovation.

ww5202• 16 years ago

Here's an anecdote. I am affected by software patent. One of the well known optimization techniques in the product area that I'm working on has been patented and bought by a big corporation. The situation is kind of murky since there are similar techniques published by academics. That big corporation has sued anyway and won large settlement from other companies.

For my product, I have to forgo implementing the technique. It defines a feature not the product but it's a competitive advantage.

dctoedt2• 16 years ago

I don't get why there are so many down-mods to perfectly civil comments, as evidenced by their zero-karma scores. I just upvoted all of them, for which I will no doubt be downvoted by the same worthy who down-voted the others.

kragen• 16 years ago

There are lots of perfectly civil comments that add nothing to whatever discussion they are part of: stupid jokes, restating the obvious, complaining about downvoting, and so on. People often downvote such comments in order that others will be able to more easily find the comments worth reading.

dctoedt2• 16 years ago

None of the comments I upvoted were in any of those categories -- at least not IMHO, and therein lies the problem, it usually comes down to a matter of opinion.

As long as PG doesn't separately state upvotes and downvotes, a better answer might be to reply to comments you don't love with "RTO" (restates the obvious) or "ANTD" (adds nothing to discussion).

Symmetry• 16 years ago

I've had two runins with the patent system, and both have severely weakened my trust in it.

Back in the day a student at my dorm in college decided tit would be a cool idea to make a webserver for our laundry machines so that we could tell if there was one free without going down to the basement. It attracted some interest, and was even Slashdotted a couple of times over the years. Between Slashdottings one and two a company applied for a patent on the idea of connecting laundry machines to web servers. Much later, after our dorms laundry server had been in operation for about a decade, they sent us a cease and desist letter. We informed them that they'd lose their patent if they took us to court and didn't suffer, but they are still charging people millions of dollars for the system their invalid patent gives them a monopoly on.

After I got my Master's I started work at a consultancy that did custom sensors. They had previously outsourced their engineering, but the company that had been given the engineering work had tried to patent the ideas of the consultancy out from under them. Luckily the consultancy had filed for patents first, but the company was granted one of the patents anyways.

tkeller• 16 years ago

Why didn't you send them a letter threatening to bring a declaratory judgment action, then settle for a wad of cash?

joe_the_user• 16 years ago

Who can say but starting a fight with any entity is dicey proposition. They might have no cash or be adept of leaving in the dead of night. They might turn out to have more lawyers than you and your costs would be huge.

gaius5• 16 years ago

You can't patent an idea - only an implementation.

lwhi• 16 years ago

I think that after a short amount of time (perhaps 10 years after being registered) all patents should be released.

This period would allow the innovator time to bring their product to market and begin profiting from their ideas. It would prevent patents being seen as a way to unfairly limit competition. Innovation would be encouraged. It might also reduce the desirability of patent-trading.

alain940402• 16 years ago

I wrote about limiting patents to 7 years: http://entrepreneur.venturebeat.com/2010/03/04/in-favor-of-s... (note that the title isn't mine, the title I had proposed was "the 7-year patent").

That's the best compromise I could come up with. I'm not interested in hearing from people who have a 100% ideological position. I'm interested in finding a solution, which implies a compromise from both sides. "Patents are evil" is not a solution.

billswift• 16 years ago

"In any compromise between good and evil, only evil benefits."

Which is why the government grows and grows and society gets more and more disfunctional.

zeynel1• 16 years ago

i am for abolishing the patent system - it is archaic - the reason no one can duplicate googles success is not the patents they hold but the infrastructure they built -furthermore- competition actually helps to -increase- the market - in new yorks fifth avenue there are hundreds of luxury brands - doing business next to each other - and thriving - if your competition copied you - you copy their improvements to improve your product - copyright is an impediment that serves no body ----except the government bureaucracy---- who enforces the copyright --laws--

kjrose4• 16 years ago

I think having shorter times for copyright and patent to expire would be effective. With the speed and turnaround of the current markets, patent law ends up stifling innovation and in general harming the economy as a whole.

This is a prime reason countries which are lax in enforcing copyright law as rising economically in the world.

Qz• 16 years ago

I'm on board for abolishing software patents, but it would help if the author understood what the (ostensible) purpose of the patent system was:

This effectively undermines the entire purpose of the patent system: the patent office is charging applicants serious money for giving it the privilege of giving away their commercial secrets.

Giving away commercial secrets is why the patent system exists! The fact that software patents usually are too obscure to give away their secrets is part of what makes software patenting so dysfunctional in the first place.

Create• 16 years ago

http://www.nosoftwarepatents.com/

Why we need to abolish software patents

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