
Ignore the code: More on Software Patents - inklesspen
http://ignorethecode.net/blog/2011/08/08/more_on_software_patents/
======
joebadmo
I've also been following some of the discussion on Twitter, and the overrall
theme for Nilay seems to be to ask for a citation for any claim he doesn't
agree with, e.g. the fairly uncontroversial claim that any non-trivial piece
of software will infringe many patents.

What I don't ever see are his citations justifying the underlying claims of
patent theory laid out here: <http://en.wikipedia.org/wiki/Patent#Rationale>

1\. Patents encourage R&D. The relevant criticism here is to ask: does this
incentive outweight the costs of the patent system as a whole? (These costs
are many. They include: any friction on innovation generally; the costs of
running the patent office; patent application; patent litigation; defense
against patent litigation; patent portfolio acquisition; the opportunity cost
of all these people spending all this money, time, energy, and brain power on
patents.)

2\. Disclosure. Relevant criticism: is it in fact that likely that interested
parties wouldn't be able to independently develop a given innovation without
the patent system? It seems fairly uncontroversial to say that, as it is, a
company will only apply for a patent if they think the patent protection will
actually last longer than any protection they would get from trade secrecy.
I.e. if a company really thought trade secrecy would keep an innovation out of
the hands of their competitors for longer than a patent would, they just
wouldn't patent it and keep it as a trade secret instead. So almost by
definition this is pretty clearly false.

3\. High fixed cost, low marginal cost innovations don't have enough
incentive. This seems like the strongest argument for patent _on some things_
, but I have yet to see any strong citations to research that isn't done by or
paid for by pharmaceutical companies. It's an empirical claim that needs to be
tested, and it seems to me that the burden of proof is on the proponents of
patent law, not opponents to disprove it.

4\. Designing around patents leads to more innovation. This seems like a
fairly obvious case of introducing artificial inefficiency. Sure, you might
get some unrelated and unexpected benefits from all of this incidental
research that you're forcing, but it seems pretty obvious that this is going
to be a net friction on overall innovation.

~~~
xilun0
More on 2.; for the purpose of disclosing knowledge, patents are typically
somewhere between 10 and 1000x less useful than a good scientific paper. And
the content of the innovative parts of most scientific papers are not covered
by patents. Open source software is another thing that makes software patents
useless for the purpose of disclosure; the value it could bring to society is
hugely inferior to the value achieved by open source software + academic
publications, and the cost is hugely superior. In itself, that should be
enough to forbid software patents, especially because there are at the same
time proven efficient ways to protect computer programs.

------
nextparadigms
It's not that nobody has told Nilay why the patent system is broken, I'm sure
a lot of people have, and he's read many articles on it, too. It's just that
he doesn't want to hear that side. I've listened to his last podcast with
Joshua, and he'll completely shut down to anything that doesn't agree with his
views on patents. From what I've seen he thinks he's right that the patent
system isn't broken and there isn't _anything_ anyone can tell him that will
disprove it. I doubt writing another article on this will change his mind, but
I suppose it could be useful to the people who started agreeing with him after
reading his post.

------
pmarin
From the Hacker News Guidelines[1]:

 _If the original title includes the name of the site, please take it out,
because the site name will be displayed after the link anyway._

[1] <http://ycombinator.com/newsguidelines.html>

~~~
inklesspen
My apologies. I considered doing so, but I thought "More on Software Patents"
might not be a sufficiently informative title.

------
podperson
"Making your product free does not make it impossible to compete with you."
And the evidence the writer cites is third party Twitter clients. Um, right.

Now, the quoted statement started out as a dismissal of Gruber's remark that
it's hypocritical to accept Google's anticompetitive dumping but complain
about Microsoft et al using patents. A more intellectually honest approach
would be to say BOTH are wrong. I could accept that.

~~~
LukasMathis
Well, I'm not making a moral argument. I did imply that it was "a slightly
shady business practice". Clearly, Google is using money from its search
business to fund OS development, and to undercut competitors. I do have a bit
of a problem with that.

But I don't think it's as problematic as using patents to go after your
competition. Like I said, offering something for free makes it harder to
compete with you, but not impossible. Lots of companies compete with free
alternatives. Twitter clearly isn't the only example. Desktop operating
systems, word processors, text editors, pick whichever example you prefer.

Owning the right patents, on the other hand, can make it impossible for others
to compete with you (e.g. what's happening to HTC right now).

