
All patents are theft  - darkduck
http://www.linuxuser.co.uk/opinion/all-patents-are-theft/
======
icebraining
This has been posted here before, but some people might not have seen it yet:

 _Parasites.

I'm proud that there is "a relative dearth of patent applications for the
video game industry, especially considering how technology-dependent the video
game industry is, and given its size in terms of annual sales."

Before issuing a condemnation, I try hard to think about it from their point
of view -- the laws of the land set the rules of the game, and lawyers are
deeply confused at why some of us aren't using all the tools that the game
gives us.

Patents are usually discussed in the context of someone "stealing" an idea
from the long suffering lone inventor that devoted his life to creating this
one brilliant idea, blah blah blah.

But in the majority of cases in software, patents effect independent
invention. Get a dozen sharp programmers together, give them all a hard
problem to work on, and a bunch of them will come up with solutions that would
probably be patentable, and be similar enough that the first programmer to
file the patent could sue the others for patent infringement.

Why should society reward that? What benefit does it bring? It doesn't help
bring more, better, or cheaper products to market. Those all come from
competition, not arbitrary monopolies. The programmer that filed the patent
didn't work any harder because a patent might be available, solving the
problem was his job and he had to do it anyway. Getting a patent is
uncorrelated to any positive attributes, and just serves to allow either money
or wasted effort to be extorted from generally unsuspecting and innocent
people or companies.

Yes, it is a legal tool that may help you against your competitors, but I'll
have no part of it. Its basically mugging someone.

I could waste hours going on about this. I really need to just write a
position paper some day that I can cut and paste when this topic comes up.

John Carmack_

[http://slashdot.org/comments.pl?sid=151312&cid=12701745](http://slashdot.org/comments.pl?sid=151312&cid=12701745)

~~~
nobody3141
That software patents don't work can be shown from the simple fact that no
software "inventor" tries to sell his patented idea to a big company.

If I invent intermittent windscreen wipers for cars then it's worthless to me
unless I also intend to make cars and without a patent I can't try and sell my
invention to a car company because they can simply copy it. When have you
heard of an inventor with a software patent selling that idea to a large
software company?

~~~
bostonpete
I think SW patents are largely broken, but not for the reason you cite. In the
past few years, I've interviewed a number of SW candidates who own their own
patents and expressed interest in selling them to whichever company ended up
hiring them. This struck me as a smart way for candidates to increase their
value to potential employers, many of which have been trying to beef up their
patent portfolio in recent years...

~~~
nobody3141
I have a list of patents I have 'invented' and were filed by previous
employers and this has got me jobs - but on the basis that I 'understand about
patents', not because they specifically wanted them (since I don't own them)

The problem with filing the patents personally is that it's expensive to do
and astronomically expensive to defend them. That's the real problem with
patents today - they have become a May Day parade of tanks used to impress the
enemy with how powerful you are.

~~~
bostonpete
> The problem with filing the patents personally is that it's expensive to do

You can get a patent for under $1000 and that patent is likely to be worth
significantly more to a company whose looking to build their portfolio for
defensive measures.

> and astronomically expensive to defend them

Agreed, but I'm sure these individuals had no intention of defending their
patents. Unlike trademarks, patents don't become invalidated if the owners
fail to go after infringers.

> they have become a May Day parade of tanks used to impress > the enemy with
> how powerful you are.

I think an arms race is a better analogy than a parade. Most (though not all)
companies pursue patents because they feel they need to in order to avoid
annihilation -- not because they want to show off.

~~~
nobody3141
Filing a patent just to have a patent is a few $100 - even less if you only
file provisionally and hope the new employer doesn't understand the
difference!

But if you want a patent to be of value, then it needs professional drafting
and filing in multiple countries with specialist lawyers who understand for
instance why Taiwan is different. That and translation and renewal fees costs
$10-100K

~~~
bostonpete
Having a US-only patent does have value even if a corporation would often want
to expand its scope after acquiring the patent.

Regardless, the objections you're raising now aren't specific to software
patents. Your initial comment was that software patents are different from
hardware patents because individuals don't try to sell them to companies.
Individuals can (and do) acquire patents and make money by selling them to
companies.

------
0x12
"Rather more revealingly, Gates concluded that the “solution” to the problem
of patents was “patenting as much as we can… A future start-up with no patents
of its own will be forced to pay whatever price the giants choose to impose.
That price might be high: Established companies have an interest in excluding
future competitors.”"

Interesting! It looks as though at least Paul Allen received the message loud
and clear.

See:
[http://news.cnet.com/8301-17852_3-20059560-71.html#ixzz1LMVQ...](http://news.cnet.com/8301-17852_3-20059560-71.html#ixzz1LMVQ3ZxQ)

~~~
dantheman
I think the full quote is more revealing:

And Microsoft knows the problems which might be caused by software patents
very well. Here is a quote from Microsoft founder Bill Gates in 1991: "If
people had understood how patents would be granted when most of today's ideas
were invented and had taken out patents, the industry would be at a complete
standstill today." Most interesting is Mr. Gates conclusion: "The solution is
patenting as much as we can. A future startup with no patents of its own will
be forced to pay whatever price the giants choose to impose. That price might
be high. Established companies have an interest in excluding future
competitors."

<http://fsfe.org/projects/ms-vs-eu/article-20060421.en.html>

So he acknowledges that patents are harmful, but given that they exist the
correct strategy is to patent as much as you can.

~~~
rickmode
Hate the game, not the players.

And Google has adopted the same strategy. Corporations do not have any human
sense of morals, fairness, or ethics much as mobs will commit crimes any
individual in the mob would never consider. Groups do not think and function
like individuals.

And we can't expect these for-profit groups to spend energy fixing the system.
Any single company would be penalized compared to its peers if it spent time,
people, and money lobbying governments for change.

The solution must be individuals and/or a consortium of some sort.

------
Tloewald
Before patents we had the guild system, essentially secret societies that
wouldn't share their skills, designs, or processes, and intentionally
obfuscated their work. Patents were part of a program of reform that in part
led to the industrial revolution. If instead of patenting the early steam
engine designs each inventor had formed a secretive guild, worked in
isolation, and produced intentionally convoluted designs, where would we be
now?

Patents are a lottery system that rewards some inventors for publishing their
designs, but has the effect of encouraging everyone to publish their designs
in the hope of winning the lottery.

The problem with our IP law is that it is maladapted for the information age.
Copyright, in particular, is the wrong kind of protection for software (which
is machinery) especially since it is used to protect binaries and not source
code (which is instead kept secret, meaning that copyright has the negative
impact of creating monopolies without the offsetting positive impact of
creating public goods).

Patents would be almost perfect for software if the patent required provision
of working source code -- the ridiculous language of patent law exists because
expressing the precise workings of machinery in words is difficult -- not so
with software.

If software patents included source code, it would accomplish the goal of
patents (making public goods) and make identifying infringement less arbitrary
(and probably even establish stronger arguments for obviousness and prior
art). "oh this algorithm is provably isomorphic to this trivial lisp
expression, so yeah it's obvious."

~~~
ScottBurson
Having software patents include source code is not a bad idea, but I don't
think it would address the most serious problem.

The big problem, in my view, is that the obviousness bar is just way too low.
The reality we have today is, the first practitioner to think of a given
problem can straightforwardly produce, using standard techniques, a solution
to that problem, and patent it. It's considered an invention because the
solution, let's suppose, didn't previously exist, but that's _only_ because no
one had attempted to solve that particular problem before. The patent teaches
nothing new; another practitioner, unaware of the patent, coming upon the same
problem, is likely to solve it in a similar way and with no great difficulty.

I'm not saying all software patents are in this category, but I think the
great majority of them are. And the reasons are not hard to find. First,
software is, by its nature, a fantastically generative medium. All that is
required to build a machine of any degree of complexity is to write down, in
the mathematical formalism called "code", a sufficiently precise specification
of how that machine should work.

And secondly, as has been lamented many times, when the PTO first started to
grant patents on software under orders from the U.S. Supreme Court (in Diamond
v. Diehr), they had no software experts. Even now, as I understand, they tend
to hire new graduates who have little industry experience. What's more, patent
examiners have no incentive to reject patents on the basis of obviousness;
that's not how their performance is measured.

These two factors together are a recipe for disaster.

~~~
Tloewald
I think including source code in patents would (a) achieve the goal of
creating a public good, and (b) provide a concrete mechanism for gauging prior
art and obviousness. We already have tools for detecting plagiarism in
computer science assignments.

Of course a patent application could include obfuscated code, but if the
obfuscation were effective then it would be unenforceable -- oh the irony. (my
new implementation is much more efficient...)

I agree with your points, but I don't see that they actually detract from what
I propose relative to the status quo.

------
tmh88j
Gates said it perfectly about the barriers to entry of most startups being
directly related to "over-patenting." I have experienced this a couple of
times personally, but I keep on hearing it over and over again from friends
who are also trying to execute their thoughts. Outsmarting a big bully can be
tricky.

"A future start-up with no patents of its own will be forced to pay whatever
price the giants choose to impose. That price might be high: Established
companies have an interest in excluding future competitors."

------
ajkessler
While patents may provide a "stumbling block to innovation and progress", it's
wrong to say they inhibit "the free exchange of ideas, and restrict[] our
knowledge of how things work." Patents do just the opposite: to obtain one,
you must describe in detail how a process works. This means that when you're
granted a patent, you disclose to the whole world how your novel invention or
process works. (The argument that the USPTO is granting frivolous patents on
non-novel things is a separate argument.)

The alternative (though not really applicable to software or mechanical
processes that get shipped in a product) is to keep everything secret. Had
Coca Cola patented their formula, everyone would have known how to make the
drink 20 years later.

~~~
nene
Do you know anybody who acquires new knowledge by reading patents?

1\. Because of the legalese language in which patents are written it's pretty
damn hard to even understand what is patented.

2\. Even if you understand what the patent is about, it's probably of little
help in implementing the thing by yourself, as the patent just describes the
general idea.

3\. If you indeed understand the idea, you might then come up with an
improvement, but there's no benefit for you in publishing it, as the
underlying idea is patented, the only one to gain from it is the patent
holder.

4\. You are encouraged by the system to not read patents, because if you
happen to infringe one, your knowledge of the existence of patent can be used
against you.

~~~
ajkessler
There is so much wrong here that I appreciate you numbering them.

-1. Yes, people read patents all the time. For one example many might be familiar with here, see any of the Mac or Canon or Nikon rumors sites, which comb through filings to learn what their favorite companies are up to. Second, the benefit comes not just from reading the actual patents. Since the info is already out there and protected, there's no real harm for those who developed the innovation in discussing it openly in journals/conferences/trade shows/popular magazines/newspapers/etc. We see this _all_ the time, probably much more than if patents didn't exist.

1\. Patents are generally written in pretty simple language. When they're hard
to read, it's because the language used is technical, not legal.

2\. This is just factually wrong. If you don't describe something, it's very
difficult to try to prevent or collect from someone using the idea you haven't
described.

3\. Sure, for a limited time. This doesn't mean there aren't periphery
benefits from seeing how someone did something novel. In the medical field,
advances that utilize some novel technique often provoke other people to look
at similar though unrelated techniques.

4\. This is just factually and legal incorrect.

~~~
ScottBurson
You give no basis for your rejection of item 4, and while IANAL, I think you
are wrong. I have definitely worked for companies whose corporate counsel
advised us software engineers not to read patents related to the work we were
doing. There is little to be gained by doing so, I was told, and it would
expose the company to the possibility of triple damages if it somehow became
known that we had infringed a patent we had read.

Yes, there are people who read patents, but AFAIK, at least in the area of
software, they are not usually practitioners.

All that said, I actually agree with you that discarding the patent system
entirely, even just for software, would be throwing out the baby with the
bathwater -- but I also have to agree with those who argue that in the case of
software, the baby/bathwater ratio is just awfully small.

~~~
ajkessler
RE your first point, you're sort of correct. Courts can award treble damages
for willful and wanton infringement of a patent. Courts don't award treble
damages willy nilly; they seem to award them when you intentionally rip off
somebody's patent. Even if you know of another's patent rights, if you have a
good faith claim as to why/how your patent doesn't infringe, and if you have a
solid opinion letter from counsel, you generally won't get hit with increased
damages, even if you lose the underlying suit.

RE software, I'd tend to agree with you. The original post makes the case that
_all_ patents are bad though, and that they specifically prevent that
transmittal of knowledge. That's really what I was responding to.

------
Angostura
The headline is "all patents are theft" but the atricle only appears to
address software patents.

~~~
bartl
I think it's an allusion to the quote at the start of the article: "All art is
theft". Maybe it would have been more correct as "all inventions are theft".

~~~
Angostura
Indeed,

I supopse that wouldn't have made nearly such a compelling headline.

~~~
xiaoma
How so? To me, _All invention is theft_ would have been a very compelling
headline. Rather than conjure up images of a politically-minded linux geek, it
makes me wonder what kind of article is behind such an apparently indefensible
headline.

------
amuhtar
I agree with the writer of the article in that we are always building on the
ideas of others, but I also see the side of the holder of the patent.

When so much is invested (time, money, resources) into R&D, the first mover
tends lose in the end. All a competitor needs to know is that it is possible.
As Seth Godin has said several times, once something can be put on paper, it
can be produced cheaper by someone else.

So, if we are to get rid of patents, then startups and other inventors will
need to find creative ways to capitalize/profit on the ideas benefit from
being first mover.

------
dminor
When I expressed the opinion the other day that patents were stupid, my boss
said my position was "radical". I just laughed and said it wasn't in the
software industry.

"Oh, well, software patents are bad, but...". He's a mechanical engineer by
education.

I didn't bother bringing up the threatening letter we got from a patent troll
a couple months ago :)

------
duairc
All property is theft!

<http://en.wikipedia.org/wiki/Property_is_theft>!

~~~
dodedo
As Marx wrote, from your link, " 'theft' as a forcible violation of property
presupposes the existence of property." And this is true for tangible
property, though importantly not true for intangible, intellectual constructs.

The term "Intellectual Property" is a misnomer. It would be better named
"Intellectual Control" as it does not in any way protect the inventor's
natural right to use the fruits of their invention. Rather, it exists only to
deprive others of a similar ability. Patents derive their value not from the
nature and value of invention, but from the controls and limits placed on the
intellectual freedoms of others.

We do not know how to share physical objects, so assignment of use is natural
and necessary. This is not true of intellectual constructs.

~~~
duairc
> The term "Intellectual Property" is a misnomer.

No, I get that. Even if you're a capitalist, the concept of intellectual
property doesn't make sense.

> As Marx wrote, from your link, " 'theft' as a forcible violation of property
> presupposes the existence of property."

Obviously the phrase "property is theft" is circular, but in the context it
was originally said it makes a bit more sense.

> We do not know how to share physical objects, so assignment of use is
> natural and necessary. This is not true of intellectual constructs.

"Property" isn't just assigning the use of a particular object to a particular
entity, it's also giving to that entity the right to prevent others from using
that object (by violence, ultimately). This is arguably okay for "personal
property", but what that quote is really referring to is "private property":
land, factories, "the means of production". What characterises "private
property" is that the entity which has the right to prevent others from using
the "property" (the owner of the land or boss of the factory) is not the
entity which actually uses the "property" (the workers in the factory or the
people who actually work on the farms, or mine the mines, or whatever). This
is the sense in which property is theft.

See:
[http://en.wikipedia.org/wiki/Personal_property#Personal_vers...](http://en.wikipedia.org/wiki/Personal_property#Personal_versus_private_property)

~~~
dodedo
Ah, I understand. I had assumed some level of sarcasm in your post -- my
mistake.

I agree with you.

