BW's Facts-be-Damned Defense Of Software Patents
from the facts?--where-we're-going,-we-don't-need-facts... dept
theodp writes "Citing their 'neurotic reaction to patent law,' BusinessWeek rips Slashdot readers a new one in 'Give Software Patents a Break', which takes techies to task for denying credit to innovations that in hindsight seem to be no-brainers. 'For example,' argues BW, 'Amazon's 1-Click checkout patent for speeding online purchases has been challenged in both the courts and by detractors as being incredibly obvious. No evidence of a similar innovation predating the Amazon patent was found despite a large bounty offered for its discovery and the ensuing widespread search.' That's the same argument Amazon unsuccessfully lobbied Congress with. Except prior art was found, even if the Jeff Bezos-funded BountyQuest couldn't bring itself to declare an 'official' bounty winner. And some of that prior art — a TV remote patent — was cited by a USPTO Examiner as he rejected most of the 1-Click patent claims last month."It's not surprising, of course, to find out that the piece was penned by a patent attorney -- hardly an unbiased source in the matter. He also makes other mistakes and incorrect assumptions about why people dislike software patents. It's not just because most people find the patents obvious in hindsight (as he suggests), but because people understand that innovation is an ongoing process of building on the ideas of others -- and blocking off simple ideas with patents makes it nearly impossible to continue that process. It's also about the fact that given the same problem, many, many, many programmers are likely to come up with similar solutions independently -- and giving one a complete monopoly on an idea seems ridiculous. He fails to note the inherent problem in the fact that software is already covered by copyright, meaning that patents give it a second layer of unnecessary protection. He also makes the (all too common) mistake of assuming that issued patents really are both non-obvious and new -- when there's plenty of evidence to the contrary. He follows that up by mistakenly assuming that a correlation between the number of patents filed and R&D budgets means that patents are somehow responsible, rather than the other way around. The reason more patents than ever before are being filed is because of all of these ridiculous patent suits that mean you need to file patents just to protect yourself from someone else suing you for simply providing the best product in the marketplace. All in all, it's a terrible piece, based on the incorrect premise that patents are a general good thing, and therefore more patents must be better. It shows no understanding of the actual economics of the patent system or any sense of how innovation actually works.
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Filed Under: one-click, patents, software patents
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1-Click Rejection Rejected
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I don't understand
Someone actually writes software that does something similar to my idea. I can sue them for patent infringement? Really? Good lord, nearly every piece of software ever written would violate a patent for an application concept. Heck, I probably wrote code in the last week that will violate a patent somewhere.
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Talk about biased....
"It's not surprising, of course, to find out that the piece was penned by a patent attorney -- hardly an unbiased source in the matter."
Well, there's a nice ad hominum attack to start off your non-biased commentary. Just because he's an expert on the patent system, he must be disregarded! Is that your Orwellian doublespeak message? Or is that all attorneys must be out to tilt public opinion only for their personal gain? Either way, youve betrayed your own biases, before presenting any of your own "facts," such as they are.
"It's also about the fact that given the same problem, many, many, many programmers are likely to come up with similar solutions independently -- and giving one a complete monopoly on an idea seems ridiculous."
The good news here is, I couldnt agree more, and I bet most patent attorneys would agree with us too. That's because PATENTS DO NOT GIVE A COMPLETE MONOPOLY TO THE PATENTHOLDER!!!! If gives the holder abosultely no rights to make, use or sell the invention themselves. It only gives them the right to EXCLUDE others from making, using or selling it...and not forever but for a period of effectively 17-20 years on average. Please get yourself educated on at least this subtle but significant aspect of the law before you formulate any opinions about the patent system as a whole.
"He fails to note the inherent problem in the fact that software is already covered by copyright, meaning that patents give it a second layer of unnecessary protection."
Patents and copyrights protect extremely different intangibles and have different terms of enforceability. Copyrights protect only the expression of an idea and derivative works thereof. What that means to programmers is, it protects anyone from copying your code verbatim, or with insignificant changes. But thats it. Patents, on the other hand, would protect any novel idea thats embodied in your software, regardless of the actual lines of code.
So, lets say someone comes up with a replacement for Fourier transforms that makes speech reognition technology much faster and accurate. Your argument is only give him a copyright, so he only gets to protect the code he submits to the copyright office. Whereas, the patent would protect against all uses of the idea, no matter what form the inventor himself chooses to implement it in. Not only that, but youre saying its better to give him the life of the author +70 years for very limited protection, than 17-20 years for more comprehensive protection. To what end?
Your argument leaves the impression thats its easy to get a patent on a very basic idea. I assure you, it is anything but (so long as your not in Australia, whose patent office recently allowed an application for the wheel ...literally). As evidence, the allowance rate for applications at the US Patent Office this year is just over 50%.
"He also makes the (all too common) mistake of assuming that issued patents really are both non-obvious and new -- when there's plenty of evidence to the contrary. "
Name some such evidence, then. How many issued patents are not novel and non-obvious? Give me some stats to back this up, not your bald assertion...as you accuse BK of. No system is perfect and giving the number of patents that have been invalidated or withdrawn...that puts the number at around 1%. Hardly indicative of a broken system to me.
"All in all, it's a terrible piece, based on the incorrect premise that patents are a general good thing, and therefore more patents must be better. It shows no understanding of the actual economics of the patent system or any sense of how innovation actually works."
All in all, you must assume patents to be an entirely bad thing. Well, thats your perogative. But it flies in the face of patents being integral to the growth of industrial nations with a history of over 400 years. Did not Edison deserve a patent for the light bulb? Or the inventors of the transistor, microprocessor, compact disc, fiber optics? Did any of those patents impede us from innovating over this, the most technologically progressive era in which humanity has ever lived? Without the shield of patents, there is no incentive to sink R&D money and effort in to new ideas, when copyists can turn around and effortlessly put out their rip-offs the day after you launch a product. That is the true economics of how innovation actually works!
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Re: I don't understand
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Re: I don't understand
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Re: Talk about biased....
Here's a couple(I have more but these are choice):
Wireless + Email = NTP's "non-obvious" patent,
a method of swinging on a swing = #6,368,227,
Friendster's patent on connecting friends together(do I have to explain how easy this one is? Ruby, the programming language, has something that has handled this type of situation for years)
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Re: Talk about biased....
The first paragraph is theodp's, as noted by the italics and quotes. The second paragraph is mine, so just to be clear, if you're calling someone biased, it would be me, not Theodp.
Well, there's a nice ad hominum attack to start off your non-biased commentary. Just because he's an expert on the patent system, he must be disregarded! Is that your Orwellian doublespeak message? Or is that all attorneys must be out to tilt public opinion only for their personal gain? Either way, youve betrayed your own biases, before presenting any of your own "facts," such as they are.
Being a patent attorney does not make one an "expert" on the patent system. It makes one an expert on making money from the patent system. Two different things. And it is a bias. His income is made based on the ability to get more patents issued. That's a pretty clear bias.
My bias, on the other hand, is pretty clear. I am focused on what's best for promoting innovation -- and I don't make or lose any money from the patent system. I just think the issue is quite important.
However, I don't see what's untruthful about stating that he's a patent attorney (he is) and therefore likely to view patents through a particular lens.
The good news here is, I couldnt agree more, and I bet most patent attorneys would agree with us too. That's because PATENTS DO NOT GIVE A COMPLETE MONOPOLY TO THE PATENTHOLDER!!!!
This is, of course, incorrect. That right to exclude is a monopoly right. In fact, if you go back to the conversations that Jefferson and Madison had about patents, they specifically refer to them as monopoly rights. The fact that there is a limited time period is true, but during that time period, they have received a complete monopoly.
So, lets say someone comes up with a replacement for Fourier transforms that makes speech reognition technology much faster and accurate. Your argument is only give him a copyright, so he only gets to protect the code he submits to the copyright office. Whereas, the patent would protect against all uses of the idea, no matter what form the inventor himself chooses to implement it in. Not only that, but youre saying its better to give him the life of the author +70 years for very limited protection, than 17-20 years for more comprehensive protection. To what end?
Actually, if you've read my writings, you'd know that I favor NO protections whatsoever. Neither copyright nor patents. However, in this case I was merely pointing out that the statement that software and hardware is identical under IP laws is incorrect.
My actual argument is that, just like any other product, whoever comes up with such things should compete in the marketplace, building a business model around his idea.
Your argument leaves the impression thats its easy to get a patent on a very basic idea. I assure you, it is anything but (so long as your not in Australia, whose patent office recently allowed an application for the wheel ...literally). As evidence, the allowance rate for applications at the US Patent Office this year is just over 50%.
There are any number of equally silly US patents. Swinging on a swing? Crustless PB&J? Making email wireless? Playing with a cat with a laser pointer? Tax preparations?
I'm not sure your frame of reference, but 50% seems crazy high to me. Remember, we are creating a MONOPOLY (despite your denial of it), and monopolies should only be given out in the rarest of circumstances. Right now, that's not the case at all.
Name some such evidence, then.
Hmm... where to start. The research of Jaffe & Lerner is a good place. Samson Vermont's writings might help as well. What's even more useful is that if you look at all the various patent thickets around some very core ideas (voip, mp3s, wireless email, streaming content) and you quickly realize that basically a ton of companies patented nearly identical methods of doing the same basic thing -- which were obvious progressions. Unfortunately, for the longest time, thanks to CAFC, the USPTO and the courts didn't have a REAL test for obviousness, using prior art as pretty much the only obviousness test -- when obviousness and novelty are two separate things.
The fact that courts are suddenly rejecting patents under the *new* obviousness standard is further evidence of how the old patent system encouraged obvious patents.
All in all, you must assume patents to be an entirely bad thing.
Yes. The evidence there is pretty compelling. On that front, you might want to look at the research of David Levine and Michele Boldrin. Our recent Nobel prize winning economist Eric Maskin has been doing extensive research on why many patents (specifically software patents) are bad for innovation. On top of that, check out the research of Eric Schiff, Petra Moser and many others. The list goes on and on...
But it flies in the face of patents being integral to the growth of industrial nations with a history of over 400 years
Actually, you really should look at the research on this, because you're confusing correlation with causation. The actual research tends to show that patents come *after* growth spurts in innovation, as the companies who did the initial innovation (without IP protection) then want to rest on their laurels and have their innovations protected. In fact, the research shows no corresponding increase in innovation following patent systems being put in place. The Levine/Boldrin book has plenty of supporting evidence on that.
Did not Edison deserve a patent for the light bulb?
Many people would argue no, not at all. Edison's success wasn't in coming up with something new (in fact, talk to some supporters of Tesla to get their take on Edison), but in being able to market it better than others. That has nothing to do with patents. So, no, I don't think he deserved a patent. He had the right to compete in the marketplace, just like anyone else in a capitalist society. Why we chose to give him a monopoly is beyond me.
Without the shield of patents, there is no incentive to sink R&D money and effort in to new ideas, when copyists can turn around and effortlessly put out their rip-offs the day after you launch a product. That is the true economics of how innovation actually works!
Actually, this is a complete and total myth. Again, I'd suggest you look at the research of Eric Schiff and Petra Moser, both of whom have showed that without patents, innovation does not slow down (and in many cases is greater).
That's because innovation is an ongoing process of trying out different ideas, combining different things and mixing it with marketing efforts to bring something successfully to market -- and then continually iterating on it. In such a situation, you want ideas to be able to flow freely so that people can continually change and improve as competition flows. That's what drives innovation.
Thus, patents could make sense in cases where there is a single new idea which is the pinnacle of thinking in the space and no further innovation is possible. However, I'm having a lot of difficulty finding an example where that's the case. Instead, back here in the real world, where innovation is an ongoing process, the incentive shouldn't be monopoly rights, but what the market will bear. Just the way capitalist economic theory works.
As for the claim that "copyists can turn around and effortlessly put out rip-offs the day after you launch a product," you again appear to be living in a different world. First of all, it's not so easy to so quickly copy most products. But, more importantly, copying just the product isn't the biggest part. You need to effectively be able to bring it to market in a way people want -- and that's not so easy. For example, many studies show that Yahoo and Microsoft provide better search results than Google. The product itself is better. But people still use Google, because Google has done a better job bringing their product to market in a way people want. Similarly, there are tons of digital music players on the market that reviewers note are better and cheaper than iPods... but Apple still dominates the market thanks to Apple brand.
In other words, copying isn't everything. Google and Apple have learned to compete in the marketplace, and there's no reason why other companies can't do that too... and it certainly doesn't require patents.
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love the bias
Hmm, so obvious = patent anyway? Hmmmmmmm interesting huh?
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Re: Re: Talk about biased....
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Re: Re: Talk about biased....
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Re: Re: Re: Talk about biased....
Besides, those are 7.1 million patents that were issued over what span of time? If you want to talk remotely recent then you can trim your 7.1 million down significantly. I mean really....
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Re: Re: Re: Re: Talk about biased....
"1. A method of swinging on a swing, the method comprising the steps of:
a) suspending a seat for supporting a user between only two chains that are hung from a tree branch;
b) positioning a user on the seat so that the user is facing a direction perpendicular to the tree branch;
c) having the user pull alternately on one chain to induce movement of the user and the swing toward one side, and then on the other chain to induce movement of the user and the swing toward the other side; and
d) repeating step c) to create side-to-side swinging motion, relative to the user, that is parallel to the tree branch."
So if you dont swing from a branch you dont infringe. If you swing perpendicular to the branch (like the rest of the world does), you dont infringe. Does any of this really bring about a hinderance to technical progress?
Granted, its a silly thing to file a patent for, and probably a silly one to allow to issue (even though I cant off the top of my head think of anything that actually renders the method not novel. If you can, then please submit it immediately to the patent office so as to make our body of patents better).
As to your other learned insights, well, lets set aside for the moment the fact that if the patent system is bad, then it must have been bad throughout, and so there'd be bad patents all throughout. Regardless of that, theres really about 2.5 million still in play, so you still have a lot of hunting to do.....really.
If your point instead is that some slightly larger than normal percentage of really bad patents have been issuing lately and its the fault of how this Administration has been running the Patent Office much like it does helluvajob FEMA and the Iraq War, then Id readily agree.
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Re: Re: Re: Re: Re: Talk about biased....
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perpetual motion
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techdirt retards
I'd rather read some good book and go to bed in good mood than upset myself trying to explain elementary basics of computing and patent law to the crowd of morons and imbeciles
Good night, braindead fellas
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It's obvious
I for one welcome our braindead moronic retarded imbecilic overlords.
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Re: Talk about biased....
US Patent #5,443,036 - A method of exercising a cat with a laser pointer.
The Patent Office does attempt to filter out bad patents, but it does rubber stamp some incredibly stupid patents.
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Re: techdirt retards
And yet here you are, posting away to tell us once again that we're idiots. Don't you know there ain't no cure for stupid?? :-p
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perpetual energy
I thought it was a joke but I took a heat lamp from my Lizard (he died 2 years ago so it was just collecting dust anyhow) and wired it to plug into my Voltaic solar backpack's cigarette outlet. After some trial and error I discovered that though my ratio was much smaller (produced 105% of what it used to run the lamp, so just 5% added charge) it does work, and I now plug in that lamp and recharge my backpack every night (which, in turn, keeps my iPod and cell phone full all the next day). I'm running everything electronic I have now except my laptop (due to the battery pack's max voltage) off that solar backpack, charging nothing else off the grid, and all it cost was a $250 backpack and a $30 heat lamp. I find it hard to believe that for under $300 the average consumer couldn't be convinced to power their cell phone, iPod, and other smaller electronics of a totally clean, renewable source like this. If you're a fan of thinkgeek, the $199 Soldius iPod charger can be wired to do the same thing, though for me I prefer paying the extra $50 to get a backpack with my panels.
Anyhow...my mom is a lawyer and I am a certified paralegal so I know a bit about patent law, and just enough specifically about it to know it's insane. If someone was to patent the self-sustaining box I saw I can see how they could make a claim that my self-charging solar backpack rig is somehow infringing on their patent, and to me, that's crazy. What I have done is an improvement on an invention I saw elsewhere, yet I'd be willing to bet that the USPTO would grant a patent on it if I applied for one, and that scares me, because now someone else will.
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You can't win, you can't break even, and you can't
But apparently nothing about the laws of thermodynamics ...
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venture capital
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Re: Re: Re: Re: Re: Talk about biased....
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Re: techdirt retards
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Charlie
I am also in the boat that people should not be able to own ideas.
Here is a good comparison that has been mentioned here before. The fashion market is constantly innovating and moving on; notice their lack of patents. The technology area is constantly developing sure, but how many great breakthroughs have we been having? Fewer and fewer it feels like. Tech patents should expire 1 to 2 years after approval. 3 at the max. Constantly hearing about tech companies suing each other for infringement. Take Vonage for example, who was somehow sued at least 4 times for the same basic thing they do. All of the companies that brought the lawsuits should have to pay them back, and get their patents invalidated because they obviously patented the same things.
With no patents in tech, I feel confident that we will see lots more development at a faster pace as the companies try to stay ahead of each other.
Better for all.
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Re: Charlie
A good name for a pitbull
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Re: Re: Talk about biased....
So, someone is disqualified as an expert if they make money at it? So since you make money from ads or otherwise on this site, you're no longer an expert commenter. Actually, I could care less if you do or do not make money here, you see the point is that's a fallacious argument that just tries to avoid substantive argument. Most people gain their expertise around their work, for which they get paid. Granted, that may sway their views, and it may not. But that doesn't change the fact that those people in the field, who are paid by the field, will know a heck of a lot more about it than those not in the field. Like yourself.
Next, you seemed to have glossed over, conveniently, that the amazon rejection of "obviousness" was itself rejected. Nice.
Then you start showing a few bad patents, swing patent, and trying to use that to say all patents are unworthy. The fact is, any system will not be perfect. That does not mean the system should be abandoned. The justice system is not perfect, should we just throw it out and go to anarchy? Will the *market of free men and ideas* work well when free men have ideas of killing/raping/destroying each other when it works to their economic benefit to do so? I think the era of the wild west showed probably not. Unless you think having a higher rate of rape/murder/chaos is ok. Most people think, despite the justice system sucking in a lot of ways, it's an overall good for society.
I would argue the same with regard to patents. The system could be better, but overall, people will not invest billions in developing the next transistor if it can be knocked off the next day by a competitor. They will focus their attention to technologies where the core innovation isnt so expensive, knowing full well they will be copied. So we will get inventions that are of the weight and substance of fashion. Enjoy more fins on cars and such.
Finally, working in academia myself, the research you talk of is pretty questionable itself. Moreover, having worked in the "real world" before academia, most academics have lost most of their sanity much less having a clue about the real world. This notion that academics are instantly the experts whose opinion matters is extremely biased itself.
Which is not to say academics opinions don't matter. I think we do great work and bring some value in being a bit more detached from the everyday realities. But as always, you have to use your brain. The research you talk about basically says "look, you MAY not need it" and has a lot of suppositions that MANY would argue are not correct in coming to questioning the value of granting limited monopolies. I think it is CLEAR that in somecases you do not need limited monopolies to spur innovations. In others you Will need it. The system is designed to balance that, not to somehow pretend to know when one situation exists vs another. But of course, you probably know better.
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Then who DOES own your ideas?
insane, and thus am against patents, trademarks, and copyrights too)
Well, Tack, let me ask you a few questions about this, since it goes to
the heart of Copyright and Patent policy. Who owns your imagination? Who
owns your experience and all the knowledge you gained over the years?
What, exactly, do you think ideas are?
Now please try to describe a marketplace where you are allowed to sell
things you do not own. It is certainly possible for such a place to
exist and indeed such places already do exist, but they are not very
consumer friendly, in my opinion.
You cannot separate the two concepts, ownership of ideas and the ability
to sell those ideas in a relatively free marketplace, when talking about
copyright and patents. The basics boil down to; I am allowed to sell the
product of my imagination and in order to sell that product I must be
allowed to own it, since no one else is allowed to own it.
Now Jefferson pointed out how that is all well and good but once I
share/sell it how can I continue to claim to own it, since it now
resides in someone else's imagination. If I press my claim of ownership
I restrict that other person's right to sell the product of their
imagination.
Boy Howdy! Now it gets complicated. How does a reasonable society
adjudicate equally valid claims of ownership? If we deny ownership of
ideas outside the personal sphere then we lose out on potential new
ideas from those who see no incentive to share. Sure, inadvertent
sharing will happen, it is the nature of the beast, but is that the best
approach for society to take?
Madison, on the other hand, pointed out that allowing perpetual
ownership reduced the potential for improvements by setting up a
monopoly on ideas. Now I think it should be noted, and never forgotten,
that such a monopoly is already inherent as regards ideas. Specifically,
I own my thoughts, memories, experiences and all ideas that derive from
them, so long as those ideas are retained by me and not shared, thereby
creating a monopoly for those ideas. Or to put it another way, ideas
always start as monopolies.
Ideas that are never shared are as harmful to society as ideas that are
shared but cannot be effectively used. So, as if the issue was not
complicated enough, how does a society provide incentive to share new
ideas while at the same time allowing for maximum opportunity to improve
on those ideas?
Tack, in answer to all this I give you our current patent and copyright
system. Definitely works in progress.
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Imagine the Visicalc (or earlier product, if any) people taking a patent on spreadsheet concept! There would be no Lotus 1-2-3 and no Excel. Or imagine the earliest editor folks killing off Word or PageMaker. Or imagine a database patent. Nobody would invest in developing new database concepts (RDBMS, any one?) because they would be outsued by original database guys. Software & web tech patents are BS. period. They are killing the industry. We need to have the products compete in the market. Not in courtrooms.
I am a software developer and I approve of the above message.
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Prior fart
Did you see the "prior art" a cartoon! Wow, I can't wait until a teleporter is invented and people file Star Trek as prior art.
Here's another gem:
"Online Minivend Reference Guide "MiniVend -multi-catalog shopping cart and mall," March 14, 1997.....
****************************However, the submission is not a winner, because we don't have evidence that someone made those simple changes and implemented 1-Click shopping in the proper fashion before our Prior To date."
In other words, it's prior art because we really want it to be, but dont have any evidence.
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Re: Re: Re: Talk about biased....
80% of everything is crud
10% of everything is.... amazing
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We become what we think about
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Patents
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