Martin Fowler on Software Patents

http://martinfowler.com/bliki/SoftwarePatent.html

by icebraining • 15 years ago

155 53 15 years ago

praptak• 15 years ago

"Against Intellectual Monopoly" by Boldwin & Levine refutes the argument about patents enabling innovation during the industrial revolution. In fact, the innovation on the steam engine itself was stifled by the original Watt patent.

http://www.dklevine.com/general/intellectual/against.htm

nextparadigms• 15 years ago

I agree. I liked his post and I mostly agreed with his views, except that one that patents enabled the industrial revolution. I don't think that's true at all. I think progress in technology (and in other fields as well) happens by building something and then allowing others to build upon it. Having a patent is not the main reason someone wants to build something or to bring it to market - not even close.

This is a good video on this (about how the steam engine, the light bulb, Ford automobiles, and other breakthrough inventions came to life):

http://vimeo.com/25380454

brazzy• 15 years ago

The point of patents was exactly to allow others to build on innovations by rewarding disclosure with a time-limited monopoly. Before there were patents, the only protection against copies was to keep innovations secret, possibly forever while you try to think of a way to exploit them without disclosing them.

ChristianMarks• 15 years ago

You beat me to it. David K. Levine is a highly regarded economist and game theorist. Boldwin and Levine state that Watt, like many inventors who obtain patents for inventions that were conceived by several people around the same time, was able to take advantage of the legal system because he was well connected. Watts' case illustrates a pattern that was to repeat itself endlessly: a moneyed inventor makes a minor modification to an existing design, and deploys his superior legal and financial resources to obtain a patent. Nice work if you can get it. James Watt spent more than half of his time litigating against other inventors with superior steam engine designs while he held the patent. When Watts' patent expired, he went into business consulting on steam engine operation--a business model similar to open source software consulting today. Marconi had the legal and financial resources to wrest the patent for radio from Tesla. Marconi's innovation was the addition of a ground wire. Tesla was posthumously awarded the patent by the US Supreme Court when Marconi's company sued the United States for the wartime use of radio.

Produce• 15 years ago

Based on this, it seems that patents in any field tend to retard innovation as opposed to promoting it. Perhaps it's not just the software patent system that needs to be re-evaluated (and possibly scrapped altogether). Can anyone name any cases where patents have, beyond a shadow of a doubt, actually encouraged progress? I'm foreseeing that the pharma industry will be brought up but I will pre-emptively point people to this article as a retort - http://www.theatlantic.com/magazine/archive/2010/11/lies-dam...

Y_76• 15 years ago

Martin Fowler is a well-respected thinker and leader in this field ... Software patents are treated as an asset class that can easily be bought and sold, like a stock or bond. There's a big market for them. And that's a big problem. The acquisition of these assets generally means that the inventor -- the entity that patent laws exist to protect -- is out of the picture, leaving those with big money the ammunition to sue, but perhaps not the ambition to innovate. Patent law is long-overdue for fundamental change.

bfe2• 15 years ago

I don't think this passes economics 101. It's often incredibly hard for an individual inventor to bring their invention to market even with a patent. Freedom to sell or license their patent instead of requiring every inventor to also build a successful startup enhances their incentive to invent and their capability of bringing an invention into the market, in the same way that freedom to sell oil you've extracted from the Earth enhances the incentive to extract oil and increases its availability in the market.

Joeri2• 15 years ago

That may be true in other fields, but that argument makes some assumptions about invention and production that don't hold true for software.

First, the notion that production is so expensive that a lone developer cannot realize their idea. This isn't true. Any developer can build and market a product single-handedly, in the majority of niches of the software market.

Secondly, the idea that a patentable idea is born first, and then a product is built based on it. That happens now and then, but it's rare (e.g. RSA patent). The common case is that a developer sets out to build a better mousetrap, delivers a piece of working software, and only afterwards realizes they've had a patentable idea. By that time they also have a marketable product.

pragmatic2• 15 years ago

Linus has a good take on IP in general in his book http://en.wikipedia.org/wiki/Just_for_Fun

Wonder if he's changed his mind since?

pragmatic2• 15 years ago

". It's not uncommon for programmers to talk about patents they've been involved in getting and how they know how absurd they are. I know it's easy to get on a high horse here, but I do think that any programmer who cooperates in getting a baseless patent should be ashamed of themselves."

Patents are a mark of prestige. Even if for something silly.

boucher• 15 years ago

I think the actual argument here is that most people would be fired if they refused to help their employer get a patent on something their employer wanted to patent.

dredmorbius• 15 years ago

Worse than that: possibly/probably sued. Most employment contracts require cooperation in legal matters.

Truth though is that that cooperation's pretty limited. Patents are largely drafted by attorneys, which is among the reasons that they're so piss poor at their stated use: transmitting knowledge on how to create the invention.

ynniv2• 15 years ago

I'm disappointed at the reception of this comment. I have never respected software patents, but I am not ashamed that my name is on one. There is prestige in knowing that you are capable of doing something notable, even if it doesn't deserve the protections that patents currently provide. I don't care to do it again, but neither do I fault those who have participated in creating these patents.

If every respectable developer abstained from the patent system the problem would not go away, so let's not punish those who create but not benefit. The only end to this abusive situation is to remove the value of all patents on software.

Joeri2• 15 years ago

Why is the patent a mark of notability of a developer's work? I hold respect for developers that share their knowledge in plain sight and plain language, not for developers that cooperate in creating some impossible-to-read legal document that I will never derive any useful knowledge from.

Or put more succinctly: if you want my respect, don't patent your idea, blog your idea.

kragen• 15 years ago

That's a fixable problem; all we have to do is ostracize and make fun of holders of software patents.

mrgoldenbrown• 15 years ago

If IP rules had been enforced better, the industrial revolution wouldn't have come to America. Samuel Slater, "Father of the American Industrial Revolution") was not famous for inventing stuff, but for successfully sneaking the tech out of Britain, against the rules.

jerf3• 15 years ago

I disagree that getting patents in this environment is hypocrisy. Not filing for them is simply unilateral disarmament, and that again does nothing but benefit the big guys.

(If failing to file for a patent could be guaranteed to have the result that the patent you never filed for would never exist, this might be a valid move, but what it means is simply that somebody else grabs it. No net gain.)

Second, if we're going to convince Congress and society at large, it is actually a more powerful argument to say "Look, we have this protection, this legally-granted monopoly, but we don't want it" than to say "We don't have patents, and we want you to take it from that guy over there". The second sounds like whining more than a good argument.

The correct move seems to me to be to snap up every patent you can, then use them only defensively.

sofal• 15 years ago

What do you do as a developer in a large corporation where you have zero control over how the patent with your name attached to it gets used? The higher-ups will give you the MAD defense argument, which is fine, except that they're not restricted to that use case. They can do whatever they want, and you can't be sure that they aren't going to bulldoze over some smaller company with it later on.

jerf3• 15 years ago

File anyway, for the second reason I gave. Your name on a patent makes your argument against the patent you have that much more effective.

I'm basing this on the assumption that you're not willing to quit over this issue, which I'm not advocating for. Protesting is good, but I prefer effective protesting to protests that make you feel good, and right now sitting on your hands does nothing. If you don't patent it, somebody else will, and you won't have any more control over that patent, either.

RyanMcGreal• 15 years ago

You're quite right. A patent - particularly the kind of broad process patent common to software - is almost a canonical case of a positional good. Like all positional goods, the pursuit of software patents incentivizes a classic arms race in which no one wins. The solution to an arms race, as Hobbes taught us back in 1660, is a rule of law that guarantees mutual safety and hence eliminates the positional advantage.

iand• 15 years ago

The wikipedia page on the Industrial Revolution cites textiles as one of the three main innovations of the period and notes that the rise of the cotton mill only occurred after the relevant patent on the spinning jenny had expired.

http://en.wikipedia.org/wiki/Industrial_Revolution

eddieplan9• 15 years ago

But if it was not for the patent law that helped and incentivized the inventor, the cotton mill innovation might not occur in the first place.

I work for a pharma, and I remembered our CEO discussing patent and generic drugs. Making generics that bring affordable medicine to the public is a very important goal of any pharma. But drug discovery (not manufacturing) is very costly and risky, and patent is the only vehicle to financially recover the cost of developing a new product and fund the effort of finding new cures.

I am not taking side in the software patent debate, but am just saying patent has its own value in promoting innovation in making it financially feasible for things that require lots of effort and resources.

bfe2• 15 years ago

I think there is some divergence of perceptions here. I've worked with a lot of applicants for software patents, and they're not vaguely involved in applying to cover something well-known for which they might want to feel ashamed. Typically they're very clever people with a lot of expertise in a domain and they know what they've come up with is really new and awesome, and they're excited to patent it. I think the perception of software patents as a world of rot are based more on the perception bias of everyone reading and reiterating the daily cycle of polemics like this one that may or not cite any specific examples, at least beyond the same handful like the Amazon one-click, than on the actual state of software patents in general. And while the occasional bad patent is easy to see, it's less easy to see how the promise of patent protection helps steer the management decisions of companies to invest in engineers and computer scientists and research and development, rather than investing scarce resources in easier and more predictable ways to generate return on their investment, like hiring more sales people or buying back stock or spending more on lobbyists.

xbryanx• 15 years ago

Can you provide an example of one of the exciting and unique patents you've run across? This would go a long way towards supporting your point.

The specific examples I've seen are ridiculously broad and far from novel.

russell• 15 years ago

BS.

I have a patent on some work that I was proud to have done, because it contributed a substantial amount of the company's revenue. However, I didnt consider it valid, because there was a substantial amount of prior art. The company went ahead and patented it anyway. The others on team WERE excited.

Benjo• 15 years ago

Discussions like this strike me as pointless. It's pretty easy to imagine a better patent system. We don't have one because incumbents who benefit from the current system have disproportionate influence over the politicians who could reform the system. Until that problem is solved, this and many other broken systems will never be reformed.

Blaming individual programmers for patent applications, which are probably incentivized by their employers, seems harsh. This isn't a problem that's going to be solved by a some optimistic idealists.

guelo• 15 years ago

If developers all united against filing software patents it could make a difference. I admit that I have cooperated in the filing of dumb patents before, but next time that happens I will refuse. Fire me if you have to.

wpietri• 15 years ago

Sure, a few programmers won't solve it, but that's ok. Given the massive harm software patents do, even a modest refusal to participate could yield significant harm reduction.

And the point of discussion is pretty clear: it's to help shape and propagate the kind of norm that Fowler is arguing for. Namely, most programmers knowing that participating in filing bullshit patents is an unprofessional activity.

jwingy• 15 years ago

I agree that we don't, and maybe never will have a reformed patent system due to the massive influence lobbyists have over our politicians. In fact, this is probably the core reason for almost every problem we have in public policy today.

I'd like to see more people talking about wanting reform of our political system and the influence money has on our politicians rather than have people wasting energy talking about the symptoms of the problem.

But alas, who will watch the watchmen?

grellas• 15 years ago

It's "every man for himself" in the patent world today, as Google is discovering much to its dismay with Android. The flood of junk that today besets the system didn't used to flow through in this way. The combination of an under-funded, inadequately staffed, and not-properly-trained USPTO, antiquated standards of patentability that don't apply to a rapidly changing world of software innovations, judges who shrug their shoulders in passive reactive mode as lawyers push large numbers of ill-conceived cases through their courts, and a Congress that has little or no accountability to anyone beyond the self-interested parties who largely shape its agenda - all these and more have led to a crisis in the patent world that no one seems either willing or able to solve.

I personally don't think the answer lies in abolishing patents because I don't think there is or likely ever will be sufficient impetus behind such an effort to make it happen. There is more hope someday of doing away with software patents but this will take many years given the recent Bilski ruling and Congressional inertia.

I don't pretend to have an answer to this. I suspect that, long term, there needs to be a severe curtailment of software patents, if not an outright abolition, in order to bring the system in line with what it used to be 20+ years ago. I have represented innovators for decades. In the past, I used to tell them: don't copy someone else's code unless you have a right to, watch out about misusing a former employer's IP, etc. and you will be fine. Today, I can't do that. Anyone can wind up infringing all sorts of nebulous patents at any time simply by doing completely independent and innovative work using nothing but one's own skills, knowledge, and talents. That is a very sorry place to be, and it has to change but how and when - that is what is so very frustrating. The author of this piece has the right sense of things but he, like me, winds up at the end basically howling at the moon in frustration over the utterly dispiriting short-term course of events.

brlewis• 15 years ago

I don't understand why Bilski lessens the hope of software patents being done away with. It basically struck down State Street (a part of the ruling that the dissent agreed with) and affirmed the Fed Circuit's ruling that struck down both State Street and Alappat. Aren't we left with Benson, Flook and Diehr as precedent? See http://ourdoings.com/ourdoings-startup/2011-07-28

WalterBright• 15 years ago

One partial solution would be to reduce the term of patents.

olalonde• 15 years ago

> Without patents only wealthy people (or those with wealthy patrons) could afford to innovate, and there was little incentive for them to do so.

In 2011, this should read:

With patents only wealthy people (or those with wealthy patrons) can afford to innovate, and there is little incentive for the rest of us to do so.

Martin Fowler on Software Patents

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