

What If The Very Theory That Underlies Why We Need Patents Is Wrong? - yanw
http://www.techdirt.com/articles/20100107/0517167656.shtml

======
dasil003
In reality there's a spectrum. If the patent office would actually enforce the
non-obvious clause rather than running as a cash cow then a lot of problems
would be solved off the bat.

I think of drug companies and software companies as the two extreme examples.
Drug development is basically a money-losing proposition without patents,
because it takes millions to get to anything useful, and once you do it's
distilled down into something that's almost trivially easy to copy.

With software on the other hand, innovation happens in tiny steps. Often
patents are granted to ideas that took someone a few days to come up with. As
software is built, hundreds or thousands of these ideas come together to
(hopefully) create a high value application. Once you have a high value
application as long as you don't release the source code it's not easy to
copy. The patents don't help someone recreate it. They have to pour blood and
sweat into the codebase to come up with something that actually replicates the
value. In other words the patent helps no one but the trolls.

Of course this is obvious to any software developer which is why we
reflexively assume patents are bad. However in between software and drugs, in
the space real physical inventions, things are quite a bit grayer. In the case
of physical things, the "obviousness" test is a little easier to apply because
everyone has some familiarity with tools and objects, and R&D can be fairly
expensive for a lot of simple end products. It seems to me that the underlying
theory of patents is fundamentally sound, but just has absolutely no
applicability to software.

~~~
esspem
Why do you think software business model can't be applied to drug development?

On of the biggest problem with drug research is that it's highly regulated by
government, so it's too costly for a small startup. Remove this regulations
and you'll get a software-like situation with thousands of startups and new
drugs.

e.g. read this: [http://daniellefong.com/2010/02/11/how-law-shapes-the-
busine...](http://daniellefong.com/2010/02/11/how-law-shapes-the-business-
landscape-and-a-patent-puzzle/)

~~~
hugh3
While the current FDA system may be overkill, do you really want the market
flooded with new drugs whose effects aren't well understood?

~~~
esspem
Do you really want the market flooded with new software, whose effects aren't
well understood?

You can find effective software despite almost no government regulation, why
do you think it won't work for drugs? I'm sure a lot of private rating
agencies evolve in the such free market of drugs.

~~~
dustingetz
software doesn't kill people

~~~
dustingetz
should i revise to iphones don't kill people?

------
stretchwithme
I think patents are a big impediment to innovation.

And I think they are morally wrong. Why do I lose my right to do something
because you write that thing down before I do?

Coming up with an idea is only a very small part of the battle. Making a
viable product is much harder but also not the biggest problem.

The biggest challenge often is getting people to buy a thing. And we already
have significant incentives in place for that.

There are things that we need that take a great deal of investment to discover
and that cannot be protected with trade secrets.

But if the innovation is of significant value, presumably one can make a
profit from it and get to market faster than the competition, so there is
reward for innovating.

People that need an innovation can also create a bounty or reward for making
it happen. And we have seen a lot effort in response to things like the x
prize and darpa's grand challenge.

So I don't see how the alleged benefits of patents justify the curtailment of
individual rights.

~~~
ErrantX
> Why do I lose my right to do something because you write that thing down
> before I do?

The inherent problem with patents and (to a lesser extent) copyright is that
they attempt to fix one problem and as a side affect enforce this too.

Playing devils advocate for a moment; a society without patents is unfairly
weighted (in terms of invention) towards BigCo. i.e. you get a lot more
innovation but only those with big cash can do something with it - and not
necessarily by paying the inventor.

Under current law things are potentially unfairly balanced to the patent
holder. I realise that in practicality it is still weighted towards BigCo
anyway because they can fund lawsuits etc.

There is, surely, a balance between the two extremes (I don't believe we have
it at the moment).

As it happens I think we need to be careful considering the broad concept of
patents. We are all familiar and, probably, all opposed to the idea of
Software Patents in their current form (or at all). However making software is
reasonably trivial - and getting a patent is, thought relatively costly, not
too difficult.

This is not entirely the case in other industries; which makes a slight
difference (in the sense that the investment for software development is
generally lower for an individual inventor)

~~~
stretchwithme
but is the cost of developing software lower than simply coming up with an
idea?

You say that no patents would favor big companies. But without intellectual
property, wouldn't it be EASIER for anyone to compete with the big companies?

------
grellas
The idea behind patents is to given inventors an incentive to disclose their
inventions to the public in exchange for getting a monopoly on them for a
limited time. Even the word patent derives for its Latin antecedent meaning
"open" (in contrast to its English-derived counterpart, "latent"). And, of
course, a monopoly grant over any invention will by definition hinder others
from using that same invention during the term of the monopoly.

In open, collaborative environments, you have openness by definition and you
have no need to give inventors incentives to disclose because they are doing
this axiomatically day-by-day as they routinely share their development work.
In such an environment, it will appear absurd to the inventors that they
should be hindered from doing their work by arbitrary restrictions granted to
a monopolist over what they regard as routine tools of their trade. This seems
arbitrary, capricious, and damaging. Such a system can even be perceived to be
obscene in allowing others who happened to win the rush to the patent office
door by a hair's breadth to bring damage claims for up to two decades against
others who were not quite so fleet of foot. And all the more so if the
"inventor" is not really anything of the sort but rather some troll who lays
about conceiving "claims" that get patented for the sole purpose of extorting
money from those who truly are in the real world inventing useful products.
And hideously so to those who philosophically oppose the idea of such monopoly
grants altogether, and see them as being even vicious and oppressive as they
are condoned by the social policy of the day as upheld by politicians,
lawyers, and lobbyists.

That is the case against patents as reflected in the spectrum of opinion
pretty widely found here on HN, and it reflects the open, collaborative
perspective many of the members here take with respect to the very idea of
innovation.

In essence, the paper cited in this piece says that the whole world of
innovation has moved, or is rapidly moving, to a state where openness is the
governing principle behind most inventions. If that is indeed true, then the
authors of that paper are right by definition - a patent system that is
designed to spur public disclosure by, in effect, "paying" the inventor via a
temporally-limited grant of a monopolistic advantage over the invention makes
no sense where inventors are more than happy to disclose it all for free based
on other things that may motivate them (the gaining of recognition, the belief
that useful information ought to be free, or whatever).

The real question, though, is whether this assumption of the authors is a
correct one. Things clearly have changed in major areas of innovation but to
generalize this to the whole world of innovation may or may not be valid. And
that is why the patent reform movement is in fact moving quite slowly in the
broader society, whatever its fervor in the narrower circles frequented by the
members here.

Not saying that reform is not needed - it plainly is. Just don't be surprised
if others aren't eager to join in the movement, especially when they are
subjected to the counter influences brought on by lobbyists, lawyers, etc. The
movement may take sway with Congress but I wouldn't expect this to happen any
time soon.

------
thaumaturgy
As usual, history provides a slightly more useful perspective on patents, and
on how their utility is changing along with society.

Although the idea of patents was first introduced a very long time ago, their
modern version didn't show up until the 1800s or so. At that time, there were
meager tools available to the average citizen, and innovation then wasn't like
it is today. It more typically required a disproportionate outlay of
resources, especially given that (at the time) labor was relatively cheaper
than technology in the southern parts of the U.S.

Later, the U.S. underwent the industrial revolution, and innovation moved from
profit-motivated individuals to profit-motivated companies; again, patents
were seen -- correctly, at the time -- to be fostering the innovation that was
advancing America's technological development.

But the landscape is much different today. The average individual has at hand
resources that would have been remarkable to Ford or Edison, and probably
dumbfounding to Eli Whitney. For roughly a month's salary, I might accumulate
all of the materials I need to invent a new kind of robot, and if I'm
interested in software, then all I need is a computer, some time, and a
problem to solve.

So, _now_ patents are no longer as justifiably the protectors of innovation,
and _now_ the case can be made that they are actually hindering it.

Conditions aren't the same now as they always were.

~~~
kjuhygfgbhjnm
The newly industrial US ignored foreign patents and copyrights - claiming they
were an attempt by europe to keep the new country down. Dicken's Martin
Chuzzlewit is an attack on the widespread (legal) piracy of his works in the
US. It's also how US steel got it's head start - by not having to pay a
license for the Bessemer converter.

Then at the end of the 19C when the US was industrialized it suddenly got a
lot more interested in patents. It's rather like how Disney wants to use 19th
century fairy tales in it's cartoons for free while making sure it's stories
will still be copyrighted in the 29th century

------
snewe
Here is the paper they cite:
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1502864>

One of the authors of the research paper has a lot of work on innovation and
open source in general:

<http://web.mit.edu/evhippel/www/papers.htm>

~~~
pasbesoin
Do I ever _hate_ the SSRN web site. Damned thing never actually produces the
file for me.

Thanks for the link to the author's site. He has a non SSRN link to the paper
on the following page; the link text is the "(PDF)" that follows the SSRN link
he first cites.

<http://web.mit.edu/evhippel/www/papers/evh-08.htm>

~~~
warfangle
Thanks for that - I'd found a free version via scholar.google.com

------
RyanMcGreal
I thought this was an elegant defence of open source:

> This result hinges on the fact that the innovative design itself is a non-
> rival good: each participant in a collaborative effort gets the value of the
> whole design, but incurs only a fraction of the design cost.

~~~
api
Nope. Without some sort of patent, each participant in a collaborate effort
gets nothing and whomever is most successful in marketing the result gets
everything.

~~~
lutorm
You assume they collaborate to _sell_ whatever the result of the collaboration
is.

~~~
api
Don't get me wrong... I _used_ to totally buy the open source idealistic
worldview. Then I actually got involved in business.

You don't understand what a brawl business can be. People almost _never_
collaborate to sell! You want the customers, you want the leverage!

Heh... collaborate to sell... how cute...

Marketing is more winner-take-all than anything else.

Nice happy idealism sounds really great until you end up in the real world
with people competing over money when they have kids, mortgages to pay, etc.

~~~
kjuhygfgbhjnm
You are a US car company - you find the cheapest supplier and every year cut
the amount you are willing to pay - when the supplier goes broke you start
again. Most of your costs and effort is put into writing contracts and NDAs
and making sure that no information leaks from your engineers to the supplier.
If the supplier makes faulty brakes - you sue them, spending 10x as much on
lawyers as on engineers.

You are a Japanese car company - you work with your suppliers and often invest
in them, you lend them your engineers to make their process more efficent,
every year their costs go down and you both make more profit. If they make bad
parts you spend the money you would have spent on lawyers on fixing the
problem and stopping it happening again.

Of course this level of cooperation is the reason Japanese car companies can't
pay their mortgages while US car companies dominate the world.

But I suppose it works for cute little outfits like Mitsubishi or Fuji.

------
secretasiandan
Regardless of the validity of this or other arguments against the current
patent system, how viable would an effort to reform the system be? I think it
would take a tremendous force to do so. Something on the order of a developed
(not even imminent) and undeniable disadvantage relative to other countries
who have a different system.

An analogy would be that you'll never be able to remove government
entitlements unless the nation faces bankruptcy because the recipients will
fight tooth and nail to keep them.

~~~
binspace
You can work around the system until it becomes irrelevant.

For example, patents are not prevalent in software. There is hardly an
innovation crisis in software.

Hardware design is also becoming more like software design. Same with business
processes.

~~~
RyanMcGreal
>There is hardly an innovation crisis in software.

Tell that to the HTML5 video codec people.

------
rsl7
I think the bar is just far too low.

------
jheriko
I was going to comment here but I went off on a bit of a tangent:
[http://jheriko-rtw.blogspot.com/2010/04/why-patents-
irritate...](http://jheriko-rtw.blogspot.com/2010/04/why-patents-irritate-me-
so.html)

I believe that no scientific theory or logical argument can support patents -
further I believe my opinion can be proved fairly rigorously. Although the
utility of such proof is not obvious.

------
ww520
The basis for the patent system reflects the tradition of individualism in
this country. The idea of a lone inventor (or lone company) creating new stuff
is romantic but unrealistic. Invention is often building on top of other ideas
and knowledge. It's more of a collaborating effort, as this paper re-affirmed.

------
jongraehl
"the putative theory that..."

this is bad usage. it's definitely a theory.

------
binspace
I've found plenty of research that concludes that patents hinder innovation.

I have been able to find any studies that conclude that patents help
innovation. Can somebody provide links if there are any?

I only see the number of patents mentioned as "evidence" of innovation.

~~~
njl
What about drug discovery? The road to approval is a long, risky, and
amazingly expensive one. Without patent protection, there wouldn't be a lot of
incentive to develop new drugs.

I think, as software people, we tend to generalize the ridiculousness of
software patents, and we decide that all patents are ridiculous. There are
industries where innovation is the result of serious risk and serious
investment, and it is in everyone's best interest to encourage that. The rub
is figuring out which industries and which classes of innovation should be
protected, and which should not be protected.

~~~
blahedo
Even with patent protection, there's only direct incentive to develop new
drugs for rich people, who can pay for them---which is why you don't see as
much research on medicines for malaria as, say, erectile dysfunction.

~~~
hugh3
Is that true? Is there really less research on medicines for malaria than
erectile dysfunction? I've met a whole bunch of malaria researchers, but never
an erectile dysfunction researcher.

~~~
cma
It is clear from the context that he is talking about private-market research,
not NSF funded university research, etc.

