When All You Have Is A Patent Hammer, Every Software Task Looks Like A Nail

from the software-patents dept

Mon, Jan 19th 2009 10:55am — Timothy Lee

If I'm right that, as I argued on Friday, there's a cultural gap between the patent bar and the technology industry on the subject of software patents, an interesting question is how we got them in the first place. After all, it wasn't that long ago that software was widely believed to be unpatentable, and major technology firms were hardly clamoring for patent protection. Peter Mennell, a Berkeley law professor who spoke at last Wednesday's Brookings patent conference had an interesting perspective on how this came about. He argues that the impetus for software patents came from patent attorneys within major software firms who spread the "gospel of patenting" within their companies. Not surprisingly, CEOs tend to delegate patent issues to their patent lawyers, and of course patent lawyers will tend to have more pro-patent views than their bosses. And so despite the fact that few technology executives were enthusiastic about patenting, the patent lawyers who worked for them pushed their firms in that direction. And of course, once some software firms started acquiring significant numbers of patents, it sparked the arms race that we've talked about here at Techdirt.

To be clear, I don't think that firms' patent attorneys were deliberately flouting their bosses' orders or working against their companies' interests. Rather, I think that patent lawyers genuinely believed (and still believe) that software patents would be good for their own firms and the broader software industry. This is similar to a phenomenon I noticed when I was researching eminent domain abuse: even lawyers who made their living defending property owners against abuses of the eminent domain system didn't think it should be illegal to take someone's property for private profit. Rather, they tended to think that the solution was to add additional layers of review to filter out the worst abuses. Obviously there's an element of self-interest here. Scaling back the number of eminent domain cases or software patents means fewer jobs for eminent domain or patent lawyers, respectively. But I think the far more important explanation is that when you have a hammer, everything looks like a nail. When you're an expert on the minutia of a particular body of law, you're naturally going to think that the solution to any given problem is to fine-tune that body of law. They tend not to think about reforms that would involve getting the lawyers out of the picture altogether.

I think the good news (if you can call it that) is that the patent system is getting so dysfunctional that it's starting to generate interest from corporate CEOs, most of whom are not patent attorneys. A Hill staffer, who spoke on the same panel as I, mentioned that he's seen an increasing trickle of tech companies coming to Capitol Hill to lobby for patent reform. As it becomes more obvious that software patents do little to promote innovation and are mostly a wealth transfer from the software industry to the patent bar, I think we'll see more tech industry CEOs paying attention to the patent problem. And most of them will be less committed to software patents than their patent lawyers are.

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Filed Under: lawyers, patents, technologists

17 Comments

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mike42 (profile), 19 Jan 2009 @ 12:48pm

What techies think is irrelivant
I guess what techies think is relevant, especially when the CEO is a techie.
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Bobby Ganoosh, 19 Jan 2009 @ 1:13pm

Re: What techies think is irrelivant
Gee, thanks for that well-though-out, coherent statement. You should post your comments more often.
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Keill Randor, 19 Jan 2009 @ 1:15pm

Yay...
Someone noticed the comment I made on the previous article about patent lawyers vs techies... (And understood what I meant too! :) ).

One of the problems in todays society, is that the lawyers/solicitors - (I'm in the uk) - get EVERYWHERE, and involved in almost EVERYTHING... Especially government... (Our previous Prime Minister was a lawyer too).

When you let the lawyers run things, you wind up with more, and more complicated, rules, which arn't in ANYBODY else's interests, except the lawyers themselves...

IMHO, lawyers should be banned from government - (parliament/congress).

Strangely enough, there was a story on the news earlier, (BBC radio) talking about a Judge who was complaining that some of the law he's having to deal with is too convoluted and complicated, and needs to be (and should be) a lot simpler...

Lawyers for you....
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mike42 (profile), 19 Jan 2009 @ 1:20pm

Re: Re: What techies think is irrelivant
Read the comments in the previous post about the "cultural gap." It's an inside joke, er, comment.
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Bobby Ganoosh, 19 Jan 2009 @ 2:25pm

Re: Re: Re: What techies think is irrelivant
Bleh. I went back and read that, and now I remember why I ignored it the first time. At least Angry Dude didn't show up.
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dinnerbell, 19 Jan 2009 @ 2:28pm

relevant
What are your qualifications? What do you know about patents or the law? Based on your bio at http://techliberation.com/author/tim-lee/ you have no training or experience in these matters.

Please see http://www.piausa.org/ for a different/opposing view on patent reform from those who do have relevant experience and training.
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DanC, 19 Jan 2009 @ 6:00pm

Re: relevant
What are your qualifications? What do you know about patents or the law? Based on your bio at http://techliberation.com/author/tim-lee/ you have no training or experience in these matters.

Perfect example of an ad hominem attack - attack the credentials instead of the argument.

Please see http://www.piausa.org/ for a different/opposing view on patent reform from those who do have relevant experience and training.

Riley doesn't have any meaningful credentials, so why would you defer to his opinion?
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Anonymous Coward, 19 Jan 2009 @ 7:07pm

Re: relevant
That's right ... if you are not an expert then shutup, you have no right to express an opinion.
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eleete, 19 Jan 2009 @ 7:09pm

Re: relevant
The argument might be for the people who actually do the creating of content and inventions. Not necessarily are the lawyers a concern if the main task is promoting innovation. Innovation does not equate to profit but to progress. Profit is not the only incentive to creation, performance or recording.
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step back, 20 Jan 2009 @ 5:34am

As usual, TechDirt prides itself in preaching narrow mindedness to the narrow minded.

Few here know what a "patent" actually is let alone what the word "software" means, or "business" or "Bilski" or "abstract". But the fact that TechDirties stayed at some brand name motel a while ago and can write code from within a Dilbert cubicle makes them feel like they are masters of a rising Empire. What actually is rising are the salt waters around your ankles.

When will you guys wake up and smell the iceberg?

You still refuse to acknowledge that you are on the deck of the USS Titanic and you are busying yourselves with arguing about whether the band should play auld lang syne in C sharp or Java short as the waters rise. This is not the time for that.

The economy is collapsing. Jobs and homes are being lost. And this how you spend your last bits of mental energy? Priding yourself in being "cultural" and one deck level above the lowly "lawyers"?
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gene_cavanaugh, 20 Jan 2009 @ 5:36am

Software patents
I agree with Michael on software patents - the USPTO and the courts are moving toward getting rid of them, and even though I am a patent attorney, I agree.
I also agree that the present patent system is dysfunctional, and needs extensive reform. First step? Make it less profitable for Congress (campaign funds from interested parties).
However, if you had ever studied a completely open system, no protection of any sort for inventors, you would know the worst possible idea is total abolition of the system.
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DanC, 20 Jan 2009 @ 6:34am

Re:
The economy is collapsing. Jobs and homes are being lost. And this how you spend your last bits of mental energy?

While you chose to post a mildly insulting, non-substantive comment that basically reads as nothing more than "you guys don't know what you're talking about, go worry about something else."

Perhaps if you were to elaborate on your claims of "preaching narrowmindedness" and your supposedly superior understanding of definitions with some support, an actual discussion could occur.

As it stands, your comment is pointless and bordering on hypocrisy. It seems particularly silly to wax intellectually superior for what amounts to little more than a petty insult. Surely, given the state of the economy, your time would be better spent in a more constructive manner.
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Anonymous Coward, 20 Jan 2009 @ 8:29am

I do not doubt (because I have seen it) that there are many journeymen attorneys who adhere to the mantra "patent, patent, patent". However, there are many others, both within corporation staffs and private practice, who fully appreciate: (1) patents are merely one tool to help shore up a person's/company's competitive position, (2) in many instances their utilization is not consistent with a client's business interests, (3) the role of the attorney is to provide counsel (hence the title "attorney and counselor at law"), (4) receiving objective counsel is a client's right, (5) it is the client, and not the attorney, who decides what to do (I cannot stress too much the importantce of this), (5) the role of an attorney is to get a client from Point A to Point B as easily and effectively as possible consistent with the strictures of law, (6) the proper role of an attorney is to advise a client on all potential options, their upsides and their downsides, and not to take a position that the avoidance of any potential liability is at all costs the only proper course, and (7) while anathema to some attorneys, many times the best course of action for an attorney to advance a client's interest is to resist the impulse to do something, anything, and instead do nothing because business matters almost invariably have a way of resolving themselves without attorney intervention.

The above are merely my observations, but I have found that the most effective attorneys exhibit the above traits...as well they should. They are a counselor, and not the alter ego of the client.
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step back, 20 Jan 2009 @ 1:03pm

"Perhaps if you were to elaborate on your claims of "preaching narrow mindedness" and your supposedly superior understanding of definitions with some support, an actual discussion could occur."

DanC,

Fair enough.

However, I never claimed to have a superior understanding of definitions. What I propose to you is that there is no universally agreed to definition of "software" or a brightline test of where hardware ends and software begins.

Before you can be dismissive of "software patents", you have to be first ready to define exactly what makes a given patent a software patent as opposed to a hardware patent. Same thing goes for "business" patents. I've yet to see anything but circular definitions for these things.

Moreover, while I have no doubt that TechDirties posting here are well meaning, I get a clear impression that they have no idea how the patent system works or why it was instituted to begin with. It was NOT instituted to cause innovation to happen. There is no patent that stops you from sitting at home and "writing" whatever code you please. So go ahead and scribe away. No one is stopping you from doing that.

P.S. These debates about what software is is seem to go round and round with no resolution. Been there and done that.
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DOH, 20 Jan 2009 @ 5:41pm

hrdwr vs sftwr
Let me take a stab at it.

Ummm, well lets see.

A hardware patent addresses hardware and a software patent addresses software. Gosh, I'm so smart - huh.

Oh, and another thing ... you have posted here so therefore you are one of those horrible TechDirties - no ?
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Andrew D. Todd, 20 Jan 2009 @ 7:42pm

Hardware versus Software, "stepback" (#14)
DOH (# 15) is being flip, of course, but here is a serious response to the divide between software and hardware. Mathematics and science are two different ways of defining truth, and that is the line between them. At the time I wrote this post, Bilski was still up in the air, of course.

http://www.techdirt.com/article.php?sid=20080319/015324581#c141

On a related point, the traditional definition of a general purpose language or a general purpose computer is Turing-completeness, that is, can you implement a Turing Machine on it? FPGA's come with so-called "soft computers" in their development kits, software which runs on the FPGA and implements a fairly traditional computer with multiple multi-bit registers, instructions, etc. In short, the FPGA does quite a lot more than implementing a Turing Machine.
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concentric direct, 14 Feb 2009 @ 7:49am

Why bother
It's an uncertain future for copywriters and software or tech industry with no understanding of doing whatever they want in regard to business and the silicon valley work place.

So as I mentioned when I got into the business as a techie, 3 years ago, and now a CEO along with other hats. Don't expect to not have a many disappointments on your way to the top of the internet ladder. Intellectual patients are next to impossible to prove, and most ideas are not worth the time in court.

My advice, don't get to fixed on one idea, or many, keep an open plate for the right timing and swing hard when it comes your way. Also kids, study internet law instead of programing or hardware. You will be much better off in 10 years. http://www.concentricdirect.com Full Circle e Media - Search for more.
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