
On Patents - Divinite
http://notch.tumblr.com/post/27751395263/on-patents
======
grellas
_If you own a software patent, you should feel bad._

Even as someone who feels we should be rid of software patents, I cannot for
the life of me understand this statement.

I can believe, philosophically, that relatively high tax rates will benefit a
society. That doesn't mean that, even in so believing, I wouldn't do my utmost
to minimize the tax that I pay within the rules provided by the law. The
question before me when I make such decisions is what makes sense for me as an
economic actor, not what the broader policy for society should be. And there
is no reason I should "feel bad" for acting in my own self-interest in that
case even if I believe the rules should be otherwise.

So too, if I am a founder, I can abhor the idea of software patents while
still using the full range of IP protections afforded by the law to enhance
the value of my startup. If getting a software patent for my company's early-
stage innovations enhances funding valuation, acquisition pricing, and
competitive edge in the marketplace - and if the law says this is a perfectly
legal way not only to protect but also to gain monopoly protection over
intangible assets that my company has and others don't - my decision here will
turn on weighing the costs of getting such protection (money costs, disclosure
risks, etc.) versus the benefits, the likelihood of qualifying for it, and
similar considerations having _nothing whatever to do with the abstract policy
debate_ concerning whether the law should afford such protection in the first
place. What is more, if I don't avail myself of such protections and if a
competitor later does so in a way that hurts my venture's prospects because I
now have to surmount legal barriers that wouldn't even have been there had I
acted to protect my company's legal interests in the first place, then I have
done affirmative harm to the people who trusted me to run my company to its
best advantage - whether they be my investors, my co-founders, my employees,
or just my own family members who might suffer if that venture should fail.
This does not mean I need to blindly pursue some form of artificial legal
protections for my company's innovations. It means that I need to make
intelligent judgments about availing myself of such protections as opposed
simply to categorically rejecting the idea of using them. In short, I need to
be smart about protecting my venture using the tools afforded by the law and
not forego those tools out of some philosophical preconceptions I have about
what the law _should_ be. The "should-be" part of the law is basically
irrelevant in this context for most entrepreneurial decisions of this type.
And there is certainly no reason to "feel bad" owning software patents if they
turn out to be helpful for one's venture in this context.

Maybe this will be seen as narrow, unenlightened, lawyer-driven thinking. It
is, however, my universal experience in having dealt with countless founders
over many years. Without exception, they have all acted consistently with the
pattern I describe and there is no reason they shouldn't have. It makes
perfect sense for a rational economic actor. Startups have enough risks as
they are. There is no reason to add to them artificially owing to social
pressures telling you to "feel bad" for doing what is right for your company.

I know the sentiments against software patents are strong here on HN but there
is a big difference between a policy debate seeking to influence Congress and
actions that make sense for individual actors having to deal with the
realities of the law as it exists today. One can condemn the idea of software
patents generally without necessarily passing censorious judgments about the
actors who need to deal with the law as they find it.

~~~
KirinDave
So what you're saying is, you'd like to _talk_ like you have a virtuous
outlook on life, but you don't actually want to own up to the consequences of
said virtue. I can understand this outlook. It is easier to pander to people
and act in your best interests than actually suffer the consequences of your
ideals.

However, I might note that this approach is easy because it seldom
accomplishes disruptive change. If you want to really disrupt a market or
community, you will often face difficulty, incredulity, ridicule, and unfair
play. So it may actually be in your long term best-interests not to play this
way.

As a capitalist-friendly example, I'd like to point to the iPhone. Apple took
a huge risk (especially financially); faced extreme difficulty in developing
and sourcing the device; faced ridicule on all sides at the merest rumor of
the iPhone; and had to fight very hard to not have a carrier completely
destroy the product with their (still present) status quo of "differentiating"
every product. However, the end result completely disrupted the phone
industry. It's also fascinating to note that the "lawyer-driven behavior" has
appeared from Apple as other parties have started working furiously to catch
up, and finally begun to succeed.

I have worked hard throughout my career to make sure that my name has not
ended up on a single software patent. When I was at Microsoft, several were
proposed around work I did for Powerset (and 1 was proposed from work I did at
Lockheed Martin). I did everything I could to shoot them down and stop them,
because _I believe they are wrong._ Maybe I've hurt my career with this
approach, maybe all I've done is piss into the wind, I don't know.

~~~
jkubicek
> So what you're saying is, you'd like to talk like you have a virtuous
> outlook on life, but you don't actually want to own up to the consequences
> of said virtue. I can understand this outlook. It is easier to pander to
> people and act in your best interests than actually suffer the consequences
> of your ideals.

That's not the point they were making at all. One developer refusing to file
for patents on their work is not going to make any difference and will only
put them at a competitive disadvantage. Reforming patent law will benefit
everyone equally. Until the time that reform happens, there's no need to make
yourself a martyr.

~~~
KirinDave
> One developer refusing to file for patents on their work is not going to
> make any difference and will only put them at a competitive disadvantage.

Every developer says this individually, and they're right. But if we all were
more diligent about shooting down spurious software patents as a matter of
professional pride, it would be a better world. That is to say, if it was
considered part of professional ethics to help vet patents for obviousness and
prior art for software.

And if the thesis, "The patent system is broken" is true, then we're all
already at a competitive disadvantage. The pursuits are not mutually exclusive
the way you make them sound.

Personally, I am tired of everyone saying, "This is the way ____ is done."
What you feel there is the status quo, and it is demonstrably not a good thing
right now. Do you think these UK banks adjusting Libor have a similar speech
about competitive advantage?

If we only define "success" but facile metrics like quarterly revenue, then
we're going to dig ourselves a hole we will never emerge from, all while
piously protesting our invisible hands are tied.

~~~
shasta
Why don't you go make an impassioned plea to the patent trolls? I'm sure you
can solve this problem at its source.

~~~
KirinDave
I am not making an impassioned plea to patent trolls. I can't change what the
people before me did. Instead, I'm trying to have my actions reflect the kind
of world I want to live in.

That doesn't mean I don't donate time/money/my voice to lobbying for this
cause. It simply means I try to be consistent in this.

~~~
Volpe
"Be the change you want to see" -- Gandhi

------
jballanc
Not sure if the irony here was intentional but...

> But there is no way in hell you can convince me that it’s beneficial for
> society to not share ideas.

See, this is what's broken with the patent system. Originally, patents were
supposed to _encourage_ idea sharing. The idea being that, if you couldn't
protect your ideas, then you were likely to keep them a secret. Patents give
you just enough protection that you _can_ share them. You share them, and then
if the idea is good, people pay you to use that idea in their own work...

So, how about this: you can get patents, but licensing fees are regulated.
Say, you take the average number of patents produced by a company in a field
per year, divide the average expenses for those companies by that number, and
divide that total by the number of companies in the field (that might be
interested in licensing the patent), and that's your regulated patent fee.

This would ensure that, for example, the pharmaceutical industry (where
average cost per patent is something like $10 mil) would still be able to
charge appropriately high fees to license patents. The software industry, on
the other hand, where patents are handed out like candy, and the number of
companies that could license your patent is huge, would end up with licensing
fees of something like $10.

I'd pay $10 for your software patent.

That's probably all it's worth.

~~~
mtgx
You still need to fix 2 other problems with software patents, otherwise it
won't work.

1) shorten the software patent period to 3 years

2) dramatically decrease the vagueness and triviality of software patents
somehow

Otherwise, you end up like in the mobile industry, where something like
250,000 patents exist in any given phone, and I assume most of those are not
enforced, but if they were regulated, and manufacturers were forced to pay for
them by default, I could easily imagine patents costing more than the product
itself. This is why you need to drastically reduce the number of patents as
well.

~~~
jandrewrogers
It often takes more than 3 years to commercialize fundamentally new computer
algorithms. It is not just development and implementation, there is also an
integration and transition period from software designed under the assumption
of previous algorithms. 10 years is probably a more reasonable limit for
computer algorithms. The R&D cost that goes into computer algorithm patents is
often substantial as well.

When people say "software patents" they are usually talking about "business
process" patents, not computer algorithm patents, and business process patents
should be disallowed generally. They are inherently vague.

~~~
slowpoke
> _When people say "software patents" they are usually talking about "business
> process" patents, not computer algorithm patents, and business process
> patents should be disallowed generally._

You are contradicting yourself. "Business processes" are nothing more than
algorithms, themselves. Algorithms are math. Math isn't patentable.

~~~
jandrewrogers
Not at all. What distinguishes "business process" patents from other patents
is that any specification strict enough to be on par with traditional patent
matter are largely useless; they are uniquely vague in their specification
because that is what makes them useful. This allows an enormous amount of
scope creep simply based upon the subjectiveness of the interpretation.

Computer algorithms are "math" in the same way that chemical process patents
are math. By the criterion upon which you deem computer algorithms to be math,
you can prove that _all_ subject matter is math via algorithmic information
theory. To make the distinction, you can patent a specific sorting algorithm
(legal, there are an infinite number of such algorithms) but you cannot patent
the idea of sorting (illegal because it is a mathematical concept). If the
argument that computer algorithms are invalid because they are mathematical
concepts is going to be made, it needs to be applied consistently which would
exclude all currently patentable subject matter.

In fact, computer algorithms have always been considered patentable subject
matter around the world because they strictly specify the design of an
electronic circuit. Electronic circuit designs are a traditionally patentable
subject matter. A mathematical concept has no such specification.

~~~
slowpoke
_> If the argument that computer algorithms are invalid because they are
mathematical concepts is going to be made, it needs to be applied consistently
which would exclude all currently patentable subject matter._

I wouldn't argue it that way, but you are correct: nothing should be
patentable. The whole patent system is wrong and fucked up, we need to get rid
of it before it causes even more irreparable harm to mankind.

------
noonespecial
"If you own a software patent, you should feel bad." You might think its "just
for defense" and have the best of intentions, but like landmines and toxic
waste, the patent will almost certainly outlive your use for it and wind up in
hands other than your own.

So there it is: Patents are like the toxic waste of innovation. You promise
yourself to keep them safely contained, but its hard to do in the real world
and once they spill, they contaminate everything around them, making the
ground uninhabitable for 20 odd years.

Feel bad.

~~~
Produce
I think that a better analogy is thinking of patents as nuclear weapons. What
we need at this point is a disarmament treaty.

------
shadowmint
Common sense speaking. Patents are indefensible nonsense.

That said, I think the point he raises is interesting. There _are_ some ideas
which are entirely algorithmic and are _hard_.

Specifically complex technical standards like video compression and encoding,
machine vision, wireless signal processing, etc.

These are things that require a significant capital outlay to invest in
research to solve the problem, but once it's solved... well, someone else can
clone the logic and make a free version. So you patent the process.

If you dont, you cant guarantee a return on investment in the project, and
thus you dont _get_ investment in the project, and ultimately the problem
doesn't get solved.

Its an interesting thought experiment, and it makes for a good argument for
patents existing. ...but then, where do you draw the line between "complex and
costly" and "stupid and trivial".

It's an argument I've heard a lot; I think it's nonsense too, but it convinces
a lot of people. It'd be interesting to see a thoughtful critique of _that_
argument, rather than the 'stupid patents are bad' argument, which, basically
everyone already agrees on.

~~~
powerslave12r
In such cases, you try to convince people to pay for your idea up front.
Depending on how revolutionary/badly needed this idea is, it will get funded.

Kickstarter and clones are the answer.

~~~
jandrewrogers
If you can already prove the idea isn't nonsense then there is no need to fund
the R&D. If you can't prove the idea isn't nonsense, no one will fund you.
Research tends to be either self-funded or backed by funding organizations
that specialize in evaluating high-risk R&D projects.

Even among the organizations that specialize in it, there is a problem that
there are only a handful of people in the world that can even begin to
evaluate the potential of a proposal. And in those cases, the people doing the
vetting do not fully understand it, but they are the best outside experts
capable of detecting any subtle red flags that suggests it will fail. This is
the normal state of affairs for advanced research; no normal person could hope
to evaluate advanced research.

Kickstarter type models would be poor for funding most types of serious
research. Leaving this to popularity contests like Kickstarter is a recipe for
a lot of clowns and wannabes with good PR getting funded in the absence of
serious (and expensive) diligence and serious research being ignored because
it can't be wrapped into a shiny soundbite that everyone understands.

~~~
powerslave12r
When your whole model revolves around it, the effort that goes into evaluating
the prospects of serious research topics will perhaps undergo a massive change
as well.

------
astrodust
An important point is that patents are not about having the idea first, but
_patenting_ the idea first.

History is littered with examples of people that failed to patent their
invention only to be beaten over the head by someone that did. In a patent-
happy society there's no room for innovators, only lawyers.

~~~
natermer
Patents, by function, are government granted monopolies over a idea or
concept.

So, basically, the person that holds the patents is guaranteed to have the
ability to sue anybody that infringes on the patents. This is backed up the
ability of the government to inflict violence on anybody that infringes.

And what is happening is that the system is getting worse.

USA was unique in that it had a first-to-invent rule governing patents. That
is if you are the first inventor of something you have the right to the patent
even if somebody else pays off the government first.

However, soon it's going to be first-to-file. Meaning that even if you
invented something first you can still infringe on a patent if somebody else
is able to get to the patent office and pay them off first.

This will go into effect on March 16, 2013.

Now people will argue that this streamlines the system and makes it much
easier to identify people that have the legal ownership of a particular patent
and thus reduce fees and the expense of taking people to court....

But seeing how patents are generally terrible things then making something
that is terrible better at being terrible is not really the sort of 'reform'
that we should be looking forward to.

~~~
natermer
To help put into a bit more perspective in case anybody is doubting the wrong
direction of the first-to-file reform...

Basically: "First to file" means that unless you are able to get your product
to market and publish it before another person files on your invention then
you lose your 'rights' to use your invention.

In business it is very very easy to invent something. People come up with new
and useful ideas all the time, and create demos and sample products, etc etc.
Inventing something isn't the problem. Actually developing it and turning into
a profitable product is the really difficult problem.

In other words: The act of taking the idea to fruition is the issue here.
Inventing new things just happens as a matter of course.

Now in business the reason you will have a long time lag from invention,
prototype, and then into production is lack of capital. It's extremely
expensive process and you must have significant ability, credit, and resources
to take something to public in a meaningful way. This means you either must
sell your idea to 'big corp' or spend a huge amount of time, probably years,
painfully making your case to various creditors and working a business up from
scratch.

Now the people that don't have this problem are obviously 'Big Corp'. They
have lots of money and lots of resources so raising capital isn't a problem
for them. Hiring lots of engineers and lots of lawyers to scrutinize the
engineer's activity and then file patents on behalf of 'Big corp' isn't a
problem either.

Therefore 'first to file' as a matter of course will eliminate the
competitiveness of 'individual inventors' and place pretty much all the market
advantages granted by the patent system into the hands of massive
corporations.

~~~
joesb
In the old "first to invent" system, BigCorp can make up document of having
invent the things first, too. The only different is, with first-to-file, the
"filing record" is public, as opposed to the "inventing record" which does not
have to be published.

Also, first-to-file means that the sooner they file the patent, the sooner
it'll expires. With first-to-invent BigCorp can claim to invent something for
ten years and not file for patent, effectively makes their patent lasts "17
plus how many year they keep it secret without filing".

BigCorp will always have more resource than individual inventors, the
different is first-to-file system forces everything to be put in public
record.

------
citricsquid
> I’m not sure it’s good for society that some professions can get paid over
> and over long after they did the work (say, in the case of a game
> developer), whereas others need to perform the job over and over to get paid
> (say, in the case of a hairdresser or a lawyer).

Not sure I agree with this point. All professions are different, some make
their money long term by providing value and gaining experience, some make
their money by just _doing work_ and some make their money by providing a
product over time.

A (good) hairdresser for example makes their money because of reputation, if
they do great work for customers they can charge more, therefore their
previous work _does_ matter, just in a different way. An actual example of
people that get no long term value from the work they do are retail workers: a
shelf stacker doesn't get a "better" shelf stacking job stacking "better"
things if they can stack shelves well.

If people support the idea that content creators don't "deserve" to make money
long term then content creators will just go further down the Steam / EA
route: don't provide a _product_ , provide that product as a service. Instead
of purchasing a copy of a game, you rent access to it on a _service_ which can
be revoked at any time and is 100% controlled by the issuing company. This is
what Steam is...

~~~
aaronblohowiak
This is also an argument against capitalists or any sort of investment,
really.

------
antjohnst
I think that whilst notch has raised some valid points, he has really written
an argument based on half the picture. I believe that maybe notch should read
up more on criteria of patentability, other patent areas, and the feasibility
of having everything 'funded by government' and perhaps share some of that
too.

I agree that something like a software patent may be a bad idea, but you have
to realise that a lot of people read your stuff and get influenced by this
'half of the patent picture' and then leave with the wrong idea and start
criticising legitimate patent areas.

For example: Company A spends $200M of investors money finding a new anti-
depressant. Ok so they invested all of this money, now they need to spend 8
years proving to the FDA that it is safe to use, there goes another $300M.
'Generic pharmacies inc' says hey, thanks for doing all that work, now we can
manufacture that drug in our factory for 1c/pill and make a little bit of
money, good luck recouping your research money because we just got all the
cheap sales. Company A goes bankrupt, the investors lose their money. Company
B and C notice this industry is poor for research, and decide never to spend
that money finding an anti brain-tumor agent.

However, if company A had patented their idea, then they will have around
10-15 years of patent-protected time (because they have to patent before
divulging it, and by the time you get through trials and approval you can
often have just a few years left) to sell their drug at a price where they can
recoup their $500M, and invest in more bigger and better research. Meanwhile,
whilst patented, other companies can see that research and build upon it with
their own research - they just cant rip them off with the money they are owed
in that time by selling it without permission. If they really want to sell it,
they can ask the company to license it to them, and pay royalties. Later, the
patent expires, as all of them do, and then generic company is free to
manufacture it without paying the inventor a cent.

Is this not a valid reason for patents? I'm sorry notch but you cant copyright
a pill, even though that copyright law may protect your own interests
(minecraft)

------
gfodor
This is a mind-bogglingly simplistic and broken argument against patents. The
main argument is by analogy and argument is patents suck because they prevent
the sharing of ideas. These are both horrible ways to argue against the patent
system. I guess it's garnered a large number of upvotes because of the author?

~~~
magicalist
Those aren't analogies, they're examples, and software patents are almost
exactly patents on ideas, not inventions.

"Although the invention has been described by way of examples of preferred
embodiments, it is to be understood that various other adaptations and
modifications can be made within the spirit and scope of the invention."

Good luck with that when the only invention actually described is a "system"
that embodies the ideas described in the claims.

------
flexie
Debating whether patents are good without differentiating on industries seems
wrong to me. I've been involved in investments in pharmaceutical companies and
investments in IT companies. Those are two completely different worlds.

In the pharmaceutical world founders and employees more often have large
opportunity costs by starting or joining a new venture. They are usually in
their 30s or 40s with huge student loans, mortgage and kids. They forgo high
incomes if they join a start-up. The road to the market is much longer (often
more than 10 years). Investment in machinery is also at a completely different
level. Drug development usually entails million dollar investment in
specialized equipment. Perhaps the most costly aspect of drug development is
the regulatory obstacles, such as getting approvals.

In contrast, IT companies are cheap. Founders often have little formal
education (Microsoft, Facebook, Skype) and the road to market is much shorter.
IT start-ups expect customers (or at least users) in a matter of weeks or
months. Many IT companies can get to proof of concept with almost no
investment in equipment. The founders simply bring their laptops on board).
Regulatory concerns, if any, can usually be dealt with by one lawyer in a few
days.

I cannot imagine anyone investing hundreds of millions of dollars in drug
development over the course of 10 years without some assurance that
competitors can't "steal" their idea. Usually that assurance is a patent or a
trade secret. But keeping secrets over 10 years with employees coming and
going - that's difficult.

tl;dr: Once you have an idea about, say a shopping cart in a web store, it can
be implemented in a few man-weeks. Turning an idea about a new drug into a
product often takes thousands of man-years. Whereas the institution of patents
seems harmful in the world of software development, it may be necessary in the
world drug development.

~~~
dasil003
Of course the flip side is that if a drug is not patentable then research
stops. More effective drugs are replaced with slightly modified, possibly less
effective or more dangerous, and definitely shorter track record drugs just to
preserve profit margins. If natural compounds are more effective in treating
some condition, today's pharmaceutical industry will do all they can to avoid
discovering that.

Sure drugs are expensive to development, but I'm not sure that the twisted
system of incentives is beneficial overall. Of course the industry will claim
that none of this research would happen without patents, but of course they
are set up that way and can't imagine it any other way. I doubt that humanity
as a whole would simply stop advanced medical research because the economics
changed.

~~~
roadnottaken
This is nonsense. Even for "natural compounds", phase 3 clinical trials are
necessary to prove efficacy. These trials cost hundreds of millions of
dollars. Nobody is going to put up that kind of money unless there's profit in
it, period.

Oh yeah, also: most phase 3 trials fail.

~~~
Produce
>Nobody is going to put up that kind of money unless there's profit in it,
period.

I don't know what kind of fantasy world you are living in but there are plenty
of governments and charities who fund scientific and medical research without
the goal of profit.

~~~
learc83
Sure they fund research, but how many of these governments and charities
actually work on the final end product.

The research they are doing is generally not in the final phase of actual
development of the drug which is where it gets incredibly expensive.

~~~
Produce
I don't know.

The interesting thing is that, from:
<http://www.techdirt.com/articles/20070927/012604.shtml>

>A recent GAO study found this to be a worrisome trend, noting that fewer new
innovative drugs are being created -- with pharma firms instead focusing on
ways to extend the patent protection on existing products by pulling a few
tricks (such as "reinventing" Claritan as Clarinex just to get more patent
coverage).

In other words, government funded or not, patents are stifling medical
innovation.

------
bjornsing
To quote robomartin (<http://news.ycombinator.com/item?id=4275361>): "I am not
against patents. I am against the granting of patents for non-inventions."

The main problem IMHO is the cultural definition of "obviousness" among patent
examiners. They seem to think

a) that (in practice) all meaningful prior art is patented so all they have to
do to find it is search their patent databases and

b) the slightest difference between prior art and a new "invention" makes the
"invention" non-obvious.

IMHO prior art should be whatever you can find in library and (more
importantly) on the Internet. The test should be that the _difference_ is non-
obvious "to a person skilled in the art", i.e. the inventive step itself has
to be non-obvious.

~~~
stcredzero
From the patent examiner AMA on reddit, and from comments that patent law
professionals have made here, it seems that those involved with patents are a
bit out of touch with the reality for software professionals.

The patent database is a tool, it's not reality. The way that patents are
written and treated is also out of touch with reality.

------
aayush
I can't remember a single case of patenting improving consumer experience in
the modern era.

The way I see it, patents are designed to improve capitalist behaviour, once
where your ideas are protected: the march towards innovation is strictly
optional.

It's time instead to consider how dependent our world is on iterative
practices. Everything we build on and upon is no longer unique: it's all
inspired, and improved.

Jim Jarmusch said this once:

>Nothing is original. Steal from anywhere that resonates with inspiration or
fuels your imagination. Devour old films, new films, music, books, paintings,
photographs, poems, dreams, random conversations, architecture, bridges,
street signs, trees, clouds, bodies of water, light and shadows.

To embrace iteration, we need to get rid of patents. That much is certain.

~~~
taligent
Dyson Vacuum Cleaners.

One sole inventor who developed 5,127+ prototype designs and clearly brought
something unique to the marketplace. Gave his whole life and money to the
product.

Almost immediately after it came out Hoover copied the design and basically
would have put him out of business.

The patents were the ONLY thing that protected him from a huge multinational
who didn't invent anything.

Now Dyson went on to invent a whole range of very cool gadgets which never
would have existed without patents.

~~~
radio4fan
Interestingly, the Dyson design was based on an existing cyclone system widely
used to separate out dust and particles in industrial settings. The innovation
was using the process in a domestic vacuum cleaner.

So it's not too far removed from the "thing-that-already-exists but _on the
internet_ " patents which are a large part of the problem, or the "thing-that-
already-exists but _on a mobile_ " patent which is biting Notch's ass at the
moment.

Not that I'm saying Dyson's patents are invalid, nor that his designs haven't
improved the state of the art in several fields, but he didn't invent the
cyclone technology in a... vacuum.

------
zbowling
> If you own a software patent, you should feel bad.

I have several (although all of them are "owned" by my former employers). We
filed them not to attack, but to defend. I hate software patents but I don't
feel bad for having them.

~~~
CamperBob2
Congratulations. That means you basically worked for a company that
manufactured land mines.

~~~
xKarl
Explain yourself.

I don't see any reason to not own patents in order to protect your work from
being patent trolled.

Let's say you invent the novel. Right? You don't patent it because you think
patents kill babies. Then I act fast enough and quickly patent the novel,
because no one did so before. I did it quickly enough to make it unclear who
was first. Then I sue your company for copyright infringment.

Yeah, that means I'm an asshole. Doesn't matter, I'm rich now. That's why you
should patent you ideas, even if you don't mind other people using them.

~~~
learc83
>Then I act fast enough and quickly patent the novel, because no one did so
before.

This is incorrect. Prior art would invalidate the patent, since someone is
already selling novels--patents have to be novel(no pun intended). You can't
patent the idea just because it hasn't been patented already.

If you don't mind other people using your idea, all you have to do is
establish prior art by releasing it to the public, either by selling it or
publishing it, to prevent anyone else from patenting it.

If you want to make doubly sure the patent office actually finds your prior
art when doing a prior art search after someone else applies for a similar
patent, you can file and abandon the patent by failing to pay the fees.

~~~
jedbrown
In practice, novelty is determined by prior patents because that is what the
examiners search.

 _"Yes, for the patent definition of obvious, basically all the parts are
going to have to be either patented, or in some printed publication."_ \--
Patent Examiner "lordnecro"
([http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...](http://www.reddit.com/r/Android/comments/ww982/iama_patent_examiner_i_want_to_answer_questions/c5hau6v))

See the rest of the thread for the example where an idea is used in open
source software prior to a patent application by a third party. The patent
examiner concedes that this would likely not be found by the examiner,
therefore the patent would be granted. It likely would not stand up in court,
but that doesn't help anyone that can't afford the legal defense.

~~~
learc83
Did you skip the part where I said to ensure the examiner finds it you can
file and then abandon?

~~~
jedbrown
You still have to prepare the application and pay some fees.
<http://www.uspto.gov/web/offices/ac/qs/ope/fee092611.htm>

If a doubly-linked list is patentable, how many things have you built this
month that are also patentable? Do you really have time to write all those
bogus patent applications? In academia, it's a much better use of time to
publish scientific papers, present at conferences, and put it in open source
software. Industry has market-driven motivations.

------
natermer
> I would personally prefer it to have those be government funded (like with
> CERN or NASA) and patent free as opposed to what’s happening with medicine
> <cut>

I have to vehemently disagree with this.

Copying ideas and making incremental improvements on existing inventions is
the core of what makes technological progress possible. Even just plain 'ape-
ing' ideas is vitally important to getting improvements available to the
public. This works best in a decentralized environment. Fundamentally it is my
contention that a 'wild west' scenario will yield faster and more meaningful
human progress then a carefully regulated and regimented system.

Assuming this is true: Then the patent system, as flawed as it is, is still
superior to what was popular before it... which was official government
academies were scientists and inventors were effectively wards of the state.
This is uncomfortably close to what you are advocating.

In that sort of system internal bureaucratic politics and 'administrative law'
(which is a term meant to indicate rules-decided-by-committee) dictates the
distribution of resources and activities of scientists rather then merit or
actual need. I do not think that is a effective environment for the creation
of innovation.

I say that it's more freedom that is needed, not less.

~~~
lukifer
Innovation can and does bounce back and forth between the public and private
sectors. The Internet started life as a government-funded project before
blossoming into the ultimate decentralized infrastructure.

~~~
natermer
public sector vs private sector metaphors are mostly nonsense. It's nice to
say 'public sector' or 'publicly owned', but in reality the words and
definitions are a creation of orwellian-style double speak. It's propaganda.

Institutions like NASA or any other government institution is owned and
controlled just as much as IBM or Microsoft. They are all a for-profit
institution simply because the people working and running them are in it for
themselves.

Democracy seems like it would allow another means of control for the 'public'
over the 'public institutions', but was easily nullified by the bi-partisan
system. Effectively this country is controlled through two major political
dynasties since just about the beginning. And these political dynasties are
not driven by ideological differences, they exist for using political means to
provide economic benefit for themselves. Democracy can only work on small
scales; in city-states were they cannot control population movement. At the
small scale governments are easily controlled by their tax base. On a large
scale they cannot.

That is to say nobody works for free. Everybody works for profit, otherwise
there is no point in working and no point in participating in the institutions
in the first place. And a organization is nothing but a body of participating
individuals.

The major difference is that government institutions are able to use the
political means, that is violence, to get the funding and resources they
desire. Where as a 'private' corporation either has to go through the
government to get access to the political means or obtain what they want
through economic means in the market place.

Ultimately when you say 'public sector' versus 'private sector' you are saying
'people that work for profit that you are required to pay by law' versus
'people that work for profit that can only obtain funding through the market'.

Unfortunately the government is intertwined very very deeply into the economic
system of this country. When you get to the large corporations the distinction
between government and private corporations is _very_ blurred.

~~~
lukifer
I'm aware that public/private "sectors" are leaky abstractions, and that
corporations and the federal government are deeply intertwined in practice. My
core point was that tax-funded entities like NASA and DARPA can sometimes set
the stage for later independent innovation in the marketplace.

I dislike ideological, knee-jerk reactions of [governments/corporations] are
[always/never] [good/bad]. If there is a distinction to be made, it is between
large orgs, small orgs, and individuals, and even then, those distinctions
should be seen in the light of trading off strengths and weaknesses, with the
possibility of statistical outliers.

------
gsb
Regardless of how one feels about the ideal of software patents, the
implementation leaves huge amounts to be desired with vague and obvious
patents granted every day.

Imagine if every time a patent was invalidated by the defence at trial, the
patent office itself was ordered to pay defence costs.

As one of the few government profit centers, I think you would suddenly find a
big improvement in the standard of patents granted.

~~~
taligent
That's nice in theory. In the "real world" it would never work.

The patent office would be too scared to actually award patents and even if
they did the due diligence they would do would take ages. During which time
copycats could come in and copy the invention. You may as well abolish patents
altogether.

A better solution is to punish those companies who are defeated at trial and
then strip them of the patents to prevent future lawsuits.

~~~
gsb
You may be right about the patent office, and that would be OK by me. But for
those who say that only some patents are a problem, it leaves open a nice
incentive to make that distinction real. All it means is that the USPTO suffer
for their own errors of judgement rather that foisting that suffering onto
others.

If instead you punish those defeated at trial, there are many who say that
this is unfair to small players who cannot afford to make as strong a case as
the really rich companies. I personally don't see this as such a great problem
as they should be doing something more constructive than filing lawsuits, but
I think holding the patent office accountable does not favour large players to
the same degree.

------
robomartin
Let's stop for a moment boys and girls to fix one recurring theme in some of
these blog posts and discussions: You are not supposed to be able to patent
ideas. There's a reduction to practice requirement.

Sadly, I must say that there are tons of patents out there that are nothing
more than ideas or concepts turned into patents. I've run into lots of them in
the hundreds of patents I must have read over the years. They fact that they
are or were mere ideas becomes a glaring reality when you look into actually
implementing the patent and discover that nothing works as advertised.

This is another sad failing of the USPTO: While the rules of the game say that
ideas are not patentable, in reality, they are. So, yes, I contradict my first
statement. I still prefer to speak with more precision when it comes to
patents and not say things like "patent you idea" or "people like to file
patents to protect their ideas". You are not supposed to be able to do that.

------
MysticFear
Wow, so the plaintiffs have a patent on checking with a server to determine if
your software is licensed.

"devices that require communication with a server to perform a license check
to prevent the unauthorized use of said application, including, but not
limited to, Mindcraft."

~~~
DanBC
The patent is a little bit more complex than that.

But yes, it appears to be a "thing that exists, _but with online stuff added_
". This form of tweaking, taking an existing idea and adding a trivial
modification and being able to get a patent is harmful.

------
scott_meade
"But there is no way in hell you can convince me that it’s beneficial for
society to not share ideas."

Sorry, but Notch has it backwards. Patents are designed to for sharing - not
for preventing sharing. (Patent holder shares information on how they
implemented something in exchange for being granted temporary rights to
deliver on the method implementation.)

I know I'm being naively simplistic in that statement. Yet so is Notch in his
analogy. I've found no one who claims that "it's beneficial for society to not
share ideas". Setting up a straw man makes for juicy debate, but not great
argument.

------
chmike
Patents are not (should not) be about ideas. Patents are about inventions you
make and want to licence or exploit by your own. They define the invention so
that your clients or yourself are protected from copycats. It is very close to
copyright protection where trinity gets tazed for copying the novel. It make
sense.

The problem is patenting the concept of a novel. This is really questionnable.
How much inventive is that ? This is where the line is fuzzy to set.

------
Greendogo
I don't think patents OR copyrights are moral. You shouldn't have the ability
to stop people from using ideas in their mind (which belongs to them) even if
you were the one who came up with the idea originally and put it into their
mind. Other people's brains don't belong to you, neither does their equipment
for making books, games, movies, music, medicine or anything else. If they can
make it, why the hell should you be able to stop them from using their hands
and their property to turn out exact duplicates of your own creations?

By the way Notch, I disagree with you on the government research thing.
Government is terrible at just about everything. Instead, vital research
should be done by the free market, but without the protection of patents or
copyrights, as anyone who owns either is automatically a troll.

In a decade or three we'll be able to ask a computer to invent medicines and
technology on the spot, so why should we let one person dominate something
that is going to be so easy to discover and produce in such a short amount of
time?

------
pbhjpbhj
> _you want to profit from all novels that are ever written_ //

Patents are time limited so that's out.

If Trinity, nor anyone else had seen your novel (as described in full in the
patent application he fails to mention that he submits - this is key as
copyright is an automatic right but patents are not) would they have come up
with the idea?

If they would then why hadn't they?

How long would it have taken them to come up with the idea? More than 20
years?

Suppose the idea of a novel was so revolutionary that it never would have been
created by anyone else ... is it worth a monopoly on the idea for 20 years to
ensure that you open up that idea and share it with society for the rest of
time?

Trinity of course can research your idea freely. She can use your idea. Indeed
when she does use it privately she has an idea, based on yours, of a trilogy.
Now, you're kicking yourself, Neo, wondering why you didn't think of that. Of
course if Neo hadn't submitted his patent application in the first place then
she never would have had the details on which to build her idea ...

------
huhtenberg
> _If you own a software patent, you should feel bad._

You should feel bad if you _enforce_ it.

Practically speaking, if I hadn't had a patent granted while I was doing my
first startup, I would've never gotten the acquisition valuation I got. It's a
part of the game, you just have to have an "IP." Do I think this is retarded?
Sure. Do I feel _bad_ that I got a patent? No.

~~~
air
But the value of the patent comes out of someone potentially enforcing it at
some point. Would you feel bad if the buyers of your startup enforced the
patent or sold it to a patent troll?

~~~
huhtenberg
There's also a deterrence value in patents, what's called a defensive patent
portfolio. If someone were to sue you, you would sue back and that,
presumably, stops them from making a move.

A patent making its way to a patent troll is certainly not a good thing, but
being an unlikely event it needs to weighed against the benefits of having a
patent.

With regards to the buyers enforcing the patent, this is easily handled by
obtaining their commitment to use my patents only in a defensive capacity. In
my case I didn't have to get an explicit commitment, because I knew the
company and its internal ethics well, but in a more general case it's really
not a show stopper.

------
gavanwoolery
Yes, patents suck. But talking will do nothing. We need to literally put our
collective money where our mouthes are. I am only half joking, but somebody
please run a Kickstarter campaign with the goal of reforming the patent
system, I will gladly donate.

We need to lobby the sh_t out of our government. Start stuffing money in their
pockets - this is the only thing the beast understands. Get them to phase out
the patent system - that is, issue no new patents, wait for current patents to
expire.

We also need to create an alliance of companies that agree to never sue each
other over existing patents. We need to publicly shame companies (namely,
patent trolls) that use patents solely for exploitation.

Yes, maybe these ideas are dumb or naive, but they would still be more
effective than just talking about it...

------
JVIDEL
Is funny how things work out: patents which are meant to stave off copycats
from profiting off someone else's work end up being snatched by patent trolls
who sue anyone who does something even remotely similar even if they had no
idea there was a patent on it. Meanwhile copycats always find a loophole, they
much like patent trolls hire the best lawyers to protect themselves and keep
blatantly stealing from others, sometimes going as far as copying the logo and
other minor details, showing they don't want to compete but to deceive
consumers of the original to use the copy.

Either way the innovator gets shafted, specially when the patent troll or
copycat is an even bigger company.

------
klawed
>The problem with this argument is that patents apply even if the infringer
came up with the idea independently.

While I agree that our broken patent system is in dire need of reform, I'm not
in favor of complete abolishment. That said, if an accused infringer claimed
that she had come up with the idea independently I can't imagine a fair method
of proving or disproving that. Hence, I don't see how one could make
exceptions for independently developed ideas that aren't prior art.

------
tysont
Please, please, please do not hand the development of new drugs over to the
government.

Also, if you're going to make an odd blanket statement that ends up being a
lynchpin of your argument like "patents in software are trivial" at least try
to unpack it or back it up somehow. Microsoft (for example, via MSR) dumps a
sh __ton of $ into research to come up with some ideas that end up being
software, so how is that different than the biotech scenario?

------
hbharadwaj
I keep thinking that they should not allow companies to sue on patents unless
the patent has been implemented in one of the company's products, currently in
market. Exception of course being algorithmic patents - compression techniques
etc., - These could be made FRAND. My comment is vaguely generic and there may
be lots of exceptions but the first part would eliminate a lot of the patent
trolls I keep hearing about.

------
joseph4521
Each time I see a patent related article on Hacker News, I'm thankful that
software patents don't exist in Europe. That's at least one thing we got
right.

------
jliptzin
To kill software patents, don't abstain from patenting software. Do the
opposite. Flood the patent office with so many ridiculous and obvious software
patents and clog up their system so bad, they'll be forced to deny all of them
or just let applications sit pending for decades.

------
stoodder
Honest question, if I have a software idea and am thinking about patenting it,
but then don't (although I've developed the idea), what happens if someone
else re-creates the idea and then patents it themselves. Would I now be
infringing on their patent?

~~~
redsymbol
(Am not a lawyer, but am a tech entrepreneur whose job is to somewhat
understand patent law:)

Yes, you would, in the USA. If you are not ever sued for infringing, nor asked
to pay licensing fees by an agent of the patent holder, nothing happens and
it's effectively moot. This is the most likely outcome.

If you are sued/asked to pay, you could try to invalidate the patent (or
threaten that) because there is prior art... i.e. your implementation. You can
only do that if you can prove that you implemented it, at a specific date
sometime before the patent filing. This may not be easy. In fact - and
ideally, there is a USPTO officer reading this who can comment - it may be the
case that something can only be considered prior art if it's been published in
a textbook, tech industry journal article, etc. (Or if there another existing
patent for it).

Ideally your evidence is so strong, the patent holder will look at it and
decide it's not worth taking you to court (i.e. they believe they will lose,
or even risk getting their patent invalidated). Then they back away slowly
from you, going after easier prey.

If you go to court for any reason, it's likely to be a long, hard drain on
your energy, time and money.

~~~
stoodder
Awesome, thanks for the reply. I'll take a look a bit deeper, but this really
helps a lot.

------
crazyduckling
This show called "This American Life" did a wonderful show on patents.

[http://www.thisamericanlife.org/radio-
archives/episode/441/w...](http://www.thisamericanlife.org/radio-
archives/episode/441/when-patents-attack/)

------
powerslave12r
I feel obligated to link to my comment thread on this issue from earlier in
the week: <http://news.ycombinator.com/item?id=4263790>

------
Angostura
Ummm, you can't patent an idea. You patent an invention. The problem with
software patents is that the 'invention' is pretty close to idea level.

Nonetheless you can't patent the idea of writing a long-form novel.

~~~
astrodust
If you've had a look through even a handful of these patents people are
getting sued for millions over, they're basically the equivalent of the long-
form novel.

You could probably patent the idea of a "long click" meaning a particular type
of action. Then you could go about suing someone that came up with the same
idea independently.

~~~
law
> If you've had a look through even a handful of these patents people are
> getting sued for millions over, they're basically the equivalent of the
> long-form novel.

No. They're not. You say this because you, like everyone else, don't
understand what the claims say. That's likely because they're written in
legalese, and you're just trying your best to give those terms their plain
English meaning. You can't do that. Many of them are terms of art, with very
precise definitions crafted by the courts. As such, you have to look to
various court opinions concerning claim construction (i.e., context) to
understand their meaning.

You may disagree with that on principle, because everyone should be able to
understand the subject matter taken removed from the public domain as a matter
of law, and I'm somewhat inclined to agree. However, nothing precludes you
from gaining such an understanding: there are many books written on patent
law, and it's not too incredibly complex.

------
TomGullen
Ideas are worthless, that's what everyone likes to repeat.

I've raised the example before that ideas aren't worthless, for example
patents have value but was criticised because "patents are not ideas, they are
execution".

Notch seems to think patents are ideas. I don't know enough about patents to
really draw a conclusion as to if they are expressions of ideas or executions
of ideas.

Also, the example of writing your own similar book is quite a clumsy one for
patent infringement.

~~~
antjohnst
I agree the example is clumsy because people will find it hard in that example
to imagine why a novel is patentable (because it is obviously not in our
world, ironically lacking the criteria of being "novel"!)

I felt like notch matured a while ago but this is a surprisingly childish rant
from him, i honestly felt it was a bit below him. He has a point, a valid
point, but he has not conveyed it very well, and has caused collatoral damage
to other valid fields for patents in the process of criticizing software
patents.

~~~
billswift
Before you get too wrapped up in the idea of "other valid fields for patents",
you might check out some of those other fields. There is actually quite a bit
of evidence against patents in many other fields as well, though the only link
I have handy is to Derek Lowe's discussions related to pharma -
<http://pipeline.corante.com/archives/patents_and_ip/>

~~~
antjohnst
Have a read of my other comment on the page (search antjohnst to speed up
finding it) giving an example in the pharma industry.

