The Cultural Gulf Between Lawyers And Technologists On Patent Law
from the patent-bar-solipsism dept
On Wednesday I attended the Brookings Institution's conference on "The Limits of Abstract Patents in an Intangible Economy." The conference was organized by software patent skeptics, so that perspective has been well represented. But I was struck by the dramatic differences between the views of lawyers on the one hand (who made up the majority of the panelists and audience members) and the handful of technologists on the other. The first panel focused on the economics of abstract patents, and included a mix of technologists, economist, and lawyers. All of the panelists spoke about the serious problems being caused by patents in the software industry and argued for dramatic restrictions on software and business method patents. The tone of the second panel, which focused on legal issues, was rather different. All of the panelists were lawyers, and although they acknowledged that the patent system had problems, and that these problems are especially serious in the software industry, their focus was on abstruse details of patent law. None of them supported explicit restrictions on software patents, and few seemed to feel any urgency about the need to rein in patenting in the software industry. I think this contrast is reflected in the broader software patent debate—patent attorneys and law professors who write about patent law are overwhelmingly in favor of patents on software, and prefer to argue about how to fine-tune patent law to get fewer "bad" software patents without invalidating the "good" ones. In contrast, a lot of computer programmers simply wish the patent system would leave them alone.
There are a couple of ways you can view this split. On the one hand, it's possible that the economists and technologists on the first panel are naive and don't understand the complexities of patent law. Maybe broad restrictions on patenting of software or other abstract inventions would have unintended consequences in other parts of patent law that only one schooled in the minutia of patent law can understand. On the other hand, the perspectives found on the second panel could be a reflection of the solipsism of the patent bar. Patent attorneys seem to have an unshakable faith that there's no sector of the economy that couldn't be improved by more patenting. I suspect that one reason for these different attitudes has to do with the role the two groups play in the software industry. Patent attorneys only interact with those parts of the software industry that participate in the patent system. When software engineers write useful software without seeking patents on it—a vastly more common occurrence—patent attorneys will, by definition, not be there. Therefore, patent lawyers are inevitably going to over-estimate the importance of patents to the software industry. In contrast, the average programmer deals with the patent system infrequently. For a lot of entrepreneurs, patents are basically a nuisance—they have to get some for defensive purposes, but they're not an important part of their business plans. For employees at larger firms, patents are basically irrelevant to their day-to-day jobs. No programmer starts a programming project by consulting the patent database.
As a consequence, the two communities have radically different views of how well the patent system is working. The lawyers certainly acknowledge that there's a problem, but they seem to find it incomprehensible that there could be a major American industry that's better off without patent protections. Techies understand that patents are not an important part of the software industry, and so they're much more likely to say that their industry would be better off without them.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: lawyers, patents, technologists
Reader Comments
Subscribe: RSS
View by: Time | Thread
Hmmm...
[ link to this | view in chronology ]
Let's not forget incentives
[ link to this | view in chronology ]
Re: Let's not forget incentives
[ link to this | view in chronology ]
Re: Re: Let's not forget incentives
I think it is more complicated than that. There are two types of attorneys. There are IP attorneys, who generally make their money from patent applications, and there are litigation attorneys, who make their money from lawsuits. The two sometimes overlap, but mostly not. I doubt you will put litigators out of work because if they are not working on IP litigation, they will be working on some other non-IP litigation. IP litigation only makes up a tiny fraction of law practice.
[ link to this | view in chronology ]
Re: Re: Re: Let's not forget incentives
[ link to this | view in chronology ]
Re: Re: Re: Let's not forget incentives
Merely FYI, the majority of so-called IP attorneys fall outside of the two categories you mention. The practice is very broad based and embraces much more than patent application prosecution and litigation.
[ link to this | view in chronology ]
The problem is the purpose of patents....
Most people against software patents are those that believe patents, like copyrights are:
"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."
The people who like patents, software and business method patents in particular, seem to think patents are there for you to 'own' ideas and get a big payday from anyone who wants to actually do something with that idea.
Think about it, if you can get the government to grant you exclusive rights to a useful idea, you could be set for life. No need to to anything but hire a few patent lawyers to enforce your bounty.
Why would people, especially patent lawyers, want to change that? If you got rid of the really juicy patents (it's harder to collect widely for a patent on a threshing machine than from say doing anything remotely common "with a computer"). They might actually have to innovate, produce, or compete.
How much fun would that be?
jilocasin.
[ link to this | view in chronology ]
Re: The problem is the purpose of patents....
I doubt you could get a patent for an idea. Ideas are specifically listed as non-statutory matter
[ link to this | view in chronology ]
If you REALLY want to teach the patent lawyers...
To be honest, I really don't believe that they'll ever see a problem with the system until it directly affects how they are able to work.
It'll never happen, of course, but one can dream... right?
[ link to this | view in chronology ]
What techies think is irrelevant
[ link to this | view in chronology ]
Re: What techies think is irrelevant
[ link to this | view in chronology ]
Re: Re: What techies think is irrelevant
lol...Have you ever been an engineer working for a company?
[ link to this | view in chronology ]
Re: What techies think is irrelevant
What matters is what the lawyers think, because they are the ones who get things done! Do you think we'd have electricity without lawyers? Or the corporations that fund the lawyers? Lawyers are the only ones to gain or lose anything by the elimination of software patents, and what would we do without lawyers?
So just leave yer mitts off them thar patents, if ya know what's good fer ya!
[ link to this | view in chronology ]
Re: Re: What techies think is irrelevant
[ link to this | view in chronology ]
Re: What techies think is irrelevant
What techies think is irrelevant
their opinions as to whether patents in software are needed or not should be of no moment.
Incredibly short sighted seeing how Bill Gates started as a programmer and incorporated. By your logic, a 'techie' cannot open his own business nor work freelance yet retain rights to his work. Generally speaking no rights are transferred from the programmer to his employer, unless explicitly transferred, say, by being hired by the company, and even then they can stipulate otherwise. You are quite the greedy one Willton. I'm sure we're all clear to which side of the aisle you sit.
Here's a comment for ya. Attorneys opinions as to whether patents in software are needed or not should be of no moment. They do not produce anything useful but a protracted and expensive argument in courts. They don't invent, create or solve a single problem. They do however chance to gain or lose their ability to charge clients astronomical sums to debate and argue, if that counts. Of course they would want even more ability to do that. I and others tend to view them as leeches on society, strong perhaps, then again, you think I cannot own or create Intellectual Property for some reason.
[ link to this | view in chronology ]
Re: Re: What techies think is irrelevant
I don't think any side's ideas are irrelevant but there are a few extremes. Lawyers tend to be overly risk averse and cautious, techies are over optimistic. There are major problems with the patent system but a lot of it could be solved by changing enforcement rather than rules (especially the prohibition on patenting 'obvious' ideas.)
Techies need to realize that without patents there are no angel investors, no venture capital, no servers, bandwidth, snacks or caffeinated drinks. The lawyers may not produce much themselves but they maintain the rule of law that allows the techies to ply their trade.
BTW if it helps my credibility at all or if anyone has any questions I should note that I was 2 semesters away from a CS degree when the dot com crash happened, switched and got several economics degrees and just got my law degree last May so I feel I've got a pretty good idea of all the sides here.
[ link to this | view in chronology ]
Re: Re: Re: What techies think is irrelevant
That's easy (you fuckin mook), once you think of it; keep it to yourself.
[ link to this | view in chronology ]
Re: Re: Re: Re: What techies think is irrelevant
And what do you mean by own? If someone else starts selling something identical your response would be what... "i came up with it first and I own it, I just kept it to myself"
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What techies think is irrelevant
You cannot reverse engineer(s) it without it being available, if one invented and hid the invention, what would you reverse engineers from ?
"And what do you mean by own? If someone else starts selling something identical your response would be what... "i came up with it first and I own it, I just kept it to myself"
Perhaps they would reason that in any established industry many business might be trying to accomplish what they were. Then they might think that their invention may not have been so novel or unique so as to require 20 years of a monopoly on the idea. If two companies spend billions trying to cure Aids or Cancer would they never try similar approaches ? I sure hope so, as all the years of research before Aids even came into being might be critical in battling it. I also don't think a race to the patent office should determine the "winner" of the idea leaving the other at a loss or worse, paying for something he was on the verge of creating for themselves.
[ link to this | view in chronology ]
Re: Re: Re: What techies think is irrelevant
Ohhhh I don't know, say by having a copyright ?
"Techies need to realize that without patents there are no angel investors, no venture capital, no servers, bandwidth, snacks or caffeinated drinks. The lawyers may not produce much themselves but they maintain the rule of law that allows the techies to ply their trade."
To say there are no, implies zero which is just incorrect with a slightly enlightened approach. Take a look at Apache or Mozilla for examples.
[ link to this | view in chronology ]
Re: Re: Re: What techies think is irrelevant
They might stockpile patents, but that's for scaring anybody who want to sue them.
[ link to this | view in chronology ]
Re: Re: Re: Re: What techies think is irrelevant
[ link to this | view in chronology ]
Re: Re: Re: Re: What techies think is irrelevant
The Mozilla foundation survives largely on money from google. But more to the point there wouldn't be the massive amount of programmers willing to contribute to open source projects on their own time if they didn't have day jobs at proprietary companies.
Red Hat's (which,as you say does maintain patents how they use them is probably opening up another way too long thread in this argument) business model probably wouldn't function if they had to develop linux from the ground up rather than relying on the work of the open source movement. Which again, wouldn't exist on the scale it does if most of the contributors didn't have day jobs.
To anonymous coward. yes, you're right no implies zero and there would probably be a few benefactors but thats really a straw man argument.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What techies think is irrelevant
First off there are many many open source projects, skip on over to sourceforge for such a list. Second, I can't emphasize how wrong you are with the 'proprietary' statement. Many own their own businesses, develop apps for the web, and many do things just to say they succeeded.
The only strawman argument is that ONLY financial rewards are considered when creating software (or IP). That, again is so wrong it's not worth arguing over. Many people donate their time for many different purposes, and many people take great pride in trying to figure something out, just to see how it works, or if they can make it work better for them.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: What techies think is irrelevant
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: What techies think is irrelevant
opps
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: What techies think is irrelevant
As for how they spend their time. There are some projects I take that I get so into that I spend tons of 'off the clock' time on because I want it to be as perfect as I can. That goal, not the money becomes my driving force and that's how I know I'm taking on the right projects. Even 'proprietary' programmers don't get compensated for everything they do with a computer or code. Yet they freely give that time away.
[ link to this | view in chronology ]
Re: What techies think is irrelevant
Jobuca wrote:
You mean, companies making a nice profit off those open-source projects?
[ link to this | view in chronology ]
Re: Re: Re: What techies think is irrelevant
To put it another way: had software patents been available, there would be no Excel or Lotus spreadsheets, it would all be VisiCalc. There would be no Word or Word Perfect, it would all be WordStar. The list goes on and on, with no one having the need to improve or innovate because they have cornered the market via patent.
Deal with it: angel investors, venture capital, servers, snacks and caffeinated drinks all came before software patents were considered viable, and would easily survive their demise. The only thing that would be eliminated is IP patent lawyers.
[ link to this | view in chronology ]
Re: Re: Re: Re: What techies think is irrelevant
Besides how can people forget the big moment for MS when they told IBM they wanted to keep the patent on DOS. Whether that was good or bad (though I tend to think MS isn't as bad as IBM would have been) is another question. Patents do date back to the beginning of modern software.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What techies think is irrelevant
The "Microsoft Disk Operating System" or MS-DOS was based on QDOS, the "Quick and Dirty Operating System" written by Tim Paterson of Seattle Computer Products, for their prototype Intel 8086 based computer.
QDOS was based on Gary Kildall's CP/M, Paterson had bought a CP/M manual and used it as the basis to write his operating system in six weeks, QDOS was different enough from CP/M to be considered legal.
Microsoft bought the rights to QDOS for $50,000, keeping the IBM deal a secret from Seattle Computer Products.
Gates then talked IBM into letting Microsoft retain the rights, to market MS DOS separate from the IBM PC project, Gates proceeded to make a fortune from the licensing of MS-DOS.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What techies think is irrelevant
Patents on dos... linking to a "software patent" page where the patents include physical devices... I hope you're not trying to become a trial attorney. Your arguments don't hold water.
Nice sidestep of the copyright issue, investor issue, and lack of innovation issue. Maybe you'll win a case yet!
[ link to this | view in chronology ]
Patents are about novelty & nonobviousness - value
To "mike42", what? Get a clue - Apple spent years suing Microsoft over "look & feel"; look at how Intel has enforced its portfolio then come back with more insight; or, better yet, have heard of the RSA patent? Is that a signal? Business method?; IBM consistently leads in patent activity in the US - are all these parties seeing more value in patents than you? Me thinks do.
Yeah we have DMCA & plenty of protection (as opposed to "for limited times").
Why not first get an understanding of what bundle if rights accrue to patent-holders - copyright is registration- based/ patents are search & examination. As for importance, name one patent that you believe has taken a single dollar out of your pocket? Now name one copyright holder.
Truly sad day for innovation when you read these comments.
[ link to this | view in chronology ]
Re: Patents are about novelty & nonobviousness - value
Yup. And they do more than just patent algorithms.
They have also done interesting basic research for decades. They don't just file software patent, but they also file patents on hardware.
[ link to this | view in chronology ]
Re: Patents are about novelty & nonobviousness - value
[ link to this | view in chronology ]
Why not compare with software copyrights?
Second, while it appears you direct ire at patents, it was a famous Letter to the Editor by Bill Gates in which he argued software should not be free (1975?). Prior to that you as a consumer had to get your software from the hardware provider or develop your own.
Third, patents should not differ between industries (what is a business method? Please define that) - that is the correct argument - patents made possible innovation without grants made by connected industries. Our USPTO is *our* industrial policy.
Fourth, you went to a legal conference - what did you expect? It would be preferable to get more people - not just patent attorneys - to understand patents & patentability *not* less! Taxpayers DO NOT pay for patents, applicants pay!
Last, what is a better way to promote innovation? You fail to list a single thing. While you're at it, please explain the difference between software & hardware (in Turing or Church sense) - if you had no problems with hardware being patentable get your head out of the sand ... A patent can only last 20 years from date of filing - then, having served it's public notice function - it belongs to us all (the public).
The alternative? How about all that trade secret code in those election machines many people complain about ...
[ link to this | view in chronology ]
Re: What techies think is irrelevant
...the reason techies have a substantial stake in the software patent mess is that basic tools of the trade are being patented. As a result, the cost of producing the product is higher with no benefit. It either takes more time to work around the patent, or it's a direct cost to license it.
To put things into perspective for the "non-techies", it's as if patents were being granted on the concept of using nails to hold two boards together. Things which are obvious to a practioner of the trade are being patented, and there's no way that can be good.
[ link to this | view in chronology ]
Re: Re: What techies think is irrelevant
[ link to this | view in chronology ]
Re: Re: Re: What techies think is irrelevant
Other than open source, most people who create or develop software don't disclose their source code, therefore there are many patents being infringed at any given point in time, yet the world turns quite nicely. Once a pocket gets deep, it's like a Calvary call to attorneys. What is the incentive there ? And who is that incentive greater for ?
Wish I would have went to law school these days. It's like congress voting themselves a raise. Who wouldn't if it were only about opinions. Reality dictates, someone will have to pay.
[ link to this | view in chronology ]
Its mainly education
[ link to this | view in chronology ]
Re: Its mainly education
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
> as being all lawyers, suggesting to many that "tech" was
> not represented on the panel. Anyone who takes the time
> to learn about each member of this panel quickly realizes
> that the majority, if not all, hold technology degrees,
> some at both the undergraduate and graduate levels.
There is a big difference between having an undergraduate degree in something and having some real clue how the relevant industry works. You can have an undergraduate degree in a field without having so much as done a summer internship in that field. A degree by no means implies having any meaningful experience as a practicioner.
If you want to crow about something, crow about their
work experience. On their own, their degrees are
meaningless.
THIS is the sort of academic thinking that plagues the patent bar. They're like a PI attorney that's never been in traffic.
[ link to this | view in chronology ]
Technologists VS Lawyers
Lawyers: Want to make a ton of money by stifling innovation
Lawyers should be outlawed.
[ link to this | view in chronology ]
Market Sectors that can benefit from patents
If you want lawyers to notice problems with the patent system, then I'd suggest trying to patent legal strategies. If you can patent ideas, recipes, and all sorts of IP, then why not patent legal strategies. Then if a lawyer wants to defend a client by aggressively attacking the credibility of a witness, they would first have to pay a license fee. It makes sense that if every other industry can benefit from patent protection, so can the legal industry. I'm sure it would encourage strong innovation in defense and prosecutorial techniques.
[ link to this | view in chronology ]
This is unbelievable
I mean, just because they get large fees for:
-writing up and applying for patents
-going to court to fight either for or against one or more patents
-negotiating patent swaps between companies
They wouldn't just want to keep/expand the existing system for their own self-interest. They just want to keep the software development industry viable.
[ link to this | view in chronology ]
You have to understand the cost of the patent system = revenue for lawyers
I have the same problems getting software developers to see that their salaries are a cost to somebody.
[ link to this | view in chronology ]
Patents on software and business models
I also think patents in which the inventor does not aggressively pursue bringing the technology to market should be done away with. Royalties, if that is the only involvement of the inventor, should be limited in size and scope.
But, I believe patents, especially small entity patents, the only type I do, can be a very good thing. I agree with the makers of the U. S. Constitution, who I believe felt as I do.
[ link to this | view in chronology ]
Re: Patents on software and business models
[ link to this | view in chronology ]
[ link to this | view in chronology ]
inexperienced
[ link to this | view in chronology ]
"dinnerbell" (have to say I prefer morningbell - radiohead) right on! What I would like to see is real antitrust enforcement & then follow the money for the members of the Coalition for Patent Fairness ... The distorted facts on litigation relating to patents is absurd (less than 0.11% of revenues are paid in damages & patents suits win only 50% of the time) & no cap should ever exist to discourage truly innovative activity by those who create the most jobs - small entities & independent inventors
[ link to this | view in chronology ]
I'm a patent lawyer, and I'm an engineer. Most patent lawyers have worked in technology for a number of years. Most of us actually keep up with technology because we're interested in it. Don't assume that we don't understand what you're talking about. And listen, because that's the only way you'll learn what we're talking about.
[ link to this | view in chronology ]