
Martin Fowler on Software Patents - icebraining
http://martinfowler.com/bliki/SoftwarePatent.html
======
grellas
It's "every man for himself" in the patent world today, as Google is
discovering much to its dismay with Android. The flood of junk that today
besets the system didn't used to flow through in this way. The combination of
an under-funded, inadequately staffed, and not-properly-trained USPTO,
antiquated standards of patentability that don't apply to a rapidly changing
world of software innovations, judges who shrug their shoulders in passive
reactive mode as lawyers push large numbers of ill-conceived cases through
their courts, and a Congress that has little or no accountability to anyone
beyond the self-interested parties who largely shape its agenda - all these
and more have led to a crisis in the patent world that no one seems either
willing or able to solve.

I personally don't think the answer lies in abolishing patents because I don't
think there is or likely ever will be sufficient impetus behind such an effort
to make it happen. There is more hope someday of doing away with software
patents but this will take many years given the recent _Bilski_ ruling and
Congressional inertia.

I don't pretend to have an answer to this. I suspect that, long term, there
needs to be a severe curtailment of software patents, if not an outright
abolition, in order to bring the system in line with what it used to be 20+
years ago. I have represented innovators for decades. In the past, I used to
tell them: don't copy someone else's code unless you have a right to, watch
out about misusing a former employer's IP, etc. and you will be fine. Today, I
can't do that. Anyone can wind up infringing all sorts of nebulous patents at
any time simply by doing completely independent and innovative work using
nothing but one's own skills, knowledge, and talents. That is a very sorry
place to be, and it has to change but how and when - that is what is so very
frustrating. The author of this piece has the right sense of things but he,
like me, winds up at the end basically howling at the moon in frustration over
the utterly dispiriting short-term course of events.

~~~
brlewis
I don't understand why Bilski lessens the hope of software patents being done
away with. It basically struck down State Street (a part of the ruling that
the dissent agreed with) and affirmed the Fed Circuit's ruling that struck
down both State Street and Alappat. Aren't we left with Benson, Flook and
Diehr as precedent? See <http://ourdoings.com/ourdoings-startup/2011-07-28>

------
praptak
"Against Intellectual Monopoly" by Boldwin & Levine refutes the argument about
patents enabling innovation during the industrial revolution. In fact, the
innovation on the steam engine itself was stifled by the original Watt patent.

<http://www.dklevine.com/general/intellectual/against.htm>

~~~
nextparadigms
I agree. I liked his post and I mostly agreed with his views, except that one
that patents enabled the industrial revolution. I don't think that's true at
all. I think progress in technology (and in other fields as well) happens by
building something and then _allowing_ others to build upon it. Having a
patent is not the main reason someone wants to build something or to bring it
to market - not even close.

This is a good video on this (about how the steam engine, the light bulb, Ford
automobiles, and other _breakthrough_ inventions came to life):

<http://vimeo.com/25380454>

~~~
brazzy
The point of patents was exactly to _allow_ others to build on innovations by
rewarding disclosure with a time-limited monopoly. Before there were patents,
the only protection against copies was to keep innovations secret, possibly
forever while you try to think of a way to exploit them without disclosing
them.

~~~
hxa7241
It is not entirely clear that patents would help much in that.

If it is _not_ possible to keep something secret, patents would only help if
people otherwise really would keep inventions secret. But there are ways to
gain even without secrecy -- first-mover advantage, etc. -- and inventors
would be attracted to those rather than nothing at all.

If it _is_ possible to keep something secret, then those motivated by the
gains from patents would choose secrecy in preference, since secrecy is an
even stronger monopoly.

------
jerf
I disagree that getting patents in this environment is hypocrisy. Not filing
for them is simply unilateral disarmament, and that again does nothing but
benefit the big guys.

(If failing to file for a patent could be _guaranteed_ to have the result that
the patent you never filed for would never exist, this might be a valid move,
but what it means is simply that somebody else grabs it. No net gain.)

Second, if we're going to convince Congress and society at large, it is
actually a more powerful argument to say "Look, we have this protection, this
legally-granted monopoly, but we don't want it" than to say "We don't have
patents, and we want you to take it from that guy over there". The second
sounds like whining more than a good argument.

The correct move seems to me to be to snap up every patent you can, then use
them only defensively.

~~~
sofal
What do you do as a developer in a large corporation where you have zero
control over how the patent with your name attached to it gets used? The
higher-ups will give you the MAD defense argument, which is fine, except that
they're not restricted to that use case. They can do whatever they want, and
you can't be sure that they aren't going to bulldoze over some smaller company
with it later on.

~~~
jerf
File anyway, for the second reason I gave. Your name on a patent makes your
argument against the patent you have that much more effective.

I'm basing this on the assumption that you're not willing to quit over this
issue, which I'm not advocating for. Protesting is good, but I prefer
effective protesting to protests that make you feel good, and right now
sitting on your hands does nothing. If you don't patent it, somebody else
will, and you won't have any more control over that patent, either.

~~~
psykotic
> Your name on a patent makes your argument against the patent you have that
> much more effective.

That is crazy talk.

Here's an analogy. We're in the 19th century. Someone with analogous views to
yours says an abolitionist should become a slaveholder to be a more effective
advocate for abolition. An abolitionist who through an accident of birth
inherits an estate with a holding of slaves might indeed make a more effective
advocate against slavery because he stands to suffer immediate financial loss
were slavery abolished. That is all true. But it's a completely different
thing to say that a would-be abolitionist should actively try to become
complicit in the very system he is trying to abolish. Or that the man who is a
slaveholder by birth should expand his slave holdings in order to make his
potential losses from abolition all the more staggering.

I'm not trying to say that the system of patents is analogous to the system of
human slavery on a moral scale. I'm just addressing the tactical issues and
whether someone who opposes a system for moral reasons should become complicit
in it. There are probably many other examples I could have used, but this is
the one that came to mind.

~~~
monochromatic
The complicity isn't very analogous. There's nothing objectionable about
obtaining a patent--it's all about how you use it.

~~~
psykotic
> There's nothing objectionable about obtaining a patent--it's all about how
> you use it.

I disagree violently. You have to consider the enormous total mass of patents
in effect. The fear, uncertainty and doubt resulting from a patent being on
the books is the primary drag on entrepreneurship and individual programmer
freedom. Even if the current patent holder has a history of non-enforcement, I
cannot assume that policy will continue in the future, or that its patents
won't be bought up by the Nathan Myhrvolds of the world when the company
defaults. Now, if the patent was held by a non-profit organization with an
ironclad charter that grants free and unrestricted licenses to all comers,
that's much better than the alternative. But it's still far from ideal.
Assuming such a trojan horse strategy actually worked on a large scale, it
could deter real patent reform. Stopgap measures have a way of doing that.
That's what happened with the patent cross-licensing between large companies;
they're only starting to complain because cross-licensing is useless with
patent trolls.

~~~
dpark
It's not immoral to obtain a patent. Sure, your company's patent portfolio
might end up in the hands of a patent troll. On the other hand, your company
might be sued into oblivion in a year because you didn't obtain your patent.
In that tradeoff, I'd file the patent. The fact that something can be used for
immoral purposes does not make that thing immoral.

Your slavery comparison is also ridiculous. It is only valid to someone who
already believes patents are terribly immoral. To anyone else, it comes off as
Godwin-lite. I think a more apt analogy would be if you know that a university
was a paper mill, but the accreditation board refused to revoke its
accreditation. What would you do in that situation? You might obtain your own
degree from the institution so that you can say with certainty and with
credibility that the university is a sham. It would indeed be immoral to
obtain a fake degree for the purpose of defrauding an employer. It would _not_
be immoral to obtain a fake degree to strengthen your argument.

~~~
psykotic
> It is only valid to someone who already believes patents are terribly
> immoral.

It doesn't assume you believe patents are as immoral as slavery; I already
made that specific disclaimer. It assumes that, yes, you do take strong moral
exception to software patents.

I work for a small company that is vehemently anti-patent even though we do
enough novel work that we could file hundreds of patents each year that would
fall in the top percentile of innovation among patents. The company has been
around for a long time and some of our products are in very patent-encumbered
areas like video and audio codecs. We do license patents from others where
necessary; for example, every Miles license we sell includes licenses for
Thompson's MP3-related patents.

~~~
monochromatic
> We do license patents from others where necessary

Why is this level of complicity ok with you, but obtaining a patent for
defensive purposes is not?

~~~
psykotic
If you're asking me personally, it's because in the first case you're adding
to the ever-burgeoning sea of patents and thereby increasing drag on
innovation and curtailing programmer freedom. I don't think the kind of
sublicensing we do with Thompson is totally without negative consequences in
terms of complicity, but it's of much lesser concern to me.

~~~
monochromatic
If you say so. Anyway, I guess I'll get back to my day job of writing patents.

~~~
psykotic
Are you a patent lawyer? A programmer? Both? I'd love to hear your own
perspective on this.

For background, my previous job was in a small group of researchers and
programmers at NVIDIA. The company had a history of hardware patents but had
been pushing more and more for supposedly defensive software patents when I
joined. Partly in response to the infamous Creative patent on a robust
technique for stencil shadows which had "coincidentally" been filed right
after NVIDIA's Cass Everitt had given an invited talk at Creative on that very
technique which he had discovered (and John Carmack later independently
rediscovered). Anyway, for most of us in DevTech, at least half our time was
spent on pure research and prototyping. A colleague in that group, Ignacio
Castano, wrote a blog post on programmer responsibility and software patents
that you might find interesting:
[http://www.ludicon.com/castano/blog/2010/11/software-
patents...](http://www.ludicon.com/castano/blog/2010/11/software-patents-are-
programmers-responsibility/)

~~~
monochromatic
Patent lawyer, yes. Programmer, not really, just sort of a tinkerer.

That blog post is of course right that a patent attorney can't really write a
patent without the help of the inventor. So if you're against software
patents, I think it makes sense to put some responsibility on the inventors
who help attorneys write them. But I think this line hits the nail on the
head: "It’s the benefit of being a good corporate employee, not being
considered a trouble maker, not loosing opportunities for promotion, not
bringing negative attention to yourself, not going against the tide."

Most people are not willing to put their careers on the line over principles,
and that's not going to change. Maybe a handful of the most vehement will, and
maybe they're good enough at their jobs to get away with it... but mostly, no.
People just go along with what their bosses tell them to do.

The idea about the anti-patents is interesting, but (with that implementation)
probably not particularly useful at preventing bad patents from issuing.
Patent examiners don't search wikis for prior art--they mostly search the
patent literature, and to some extent scholarly articles, textbooks, and
things like that. So while a wiki article might be helpful at invalidating a
patent in litigation years down the road (assuming the defendant found it and
could prove when it was written), it's tough to imagine the circumstances
where it gets on an examiner's desk and helps him do his job.

~~~
psykotic
You misunderstand. Ignacio's anti-patents wiki was internal-only and meant to
discourage other NVIDIA employees from filing patents for ideas he had already
discovered. He was the main (and for a long time the only) software guy
working on the tessellation architecture and associated algorithms for DirectX
11 and NVIDIA's Fermi chip. Thus he was something of a vanguard; other
internal researchers working on the same front would be likely to make very
similar discoveries even if working independently. After all, that's the
nature of the overwhelming majority of patents and perhaps the single biggest
reason they're a bad idea in practice even if you have no issue with them in
principle.

~~~
monochromatic
I see. I imagine it did serve his purpose then.

> that's the nature of the overwhelming majority of patents and perhaps the
> single biggest reason they're a bad idea in practice even if you have no
> issue with them in principle

I disagree with this (and I have no idea if it's true in the majority of
cases, but let's stipulate to that for the sake of argument). If it's a common
occurrence that independent researchers tend to invent similar things around
the same time, then it strikes me as a _positive_ thing for the law to bestow
some advantage on whoever was first. That would tend to spur innovation and
patent disclosures, which is the whole point of the patent system.

~~~
psykotic
> If it's a common occurrence that independent researchers tend to invent
> similar things around the same time, then it strikes me as a positive thing
> for the law to bestow some advantage on whoever was first. That would tend
> to spur innovation and patent disclosures, which is the whole point of the
> patent system.

No. The coincidence of timing is a second-order consequence of the fact that
smart people when faced with problems with similar requirements will produce
similar solutions. In some cases the requirements are so constrained that not
only will the abstract ideas be identical but so will the concrete
implementations of those ideas (e.g. write me an optimal 8x8 IDCT for machine
architecture X). It is absurd that any reasonably smart fellow who happens to
tackle a problem first should be granted a government monopoly on his ideas.

If the goal is public disclosure of knowledge then assuming the problem has
any wider relevance it will soon enough be revisited by other similarly smart
fellows, so there is little incentive for the discoverer who happened to be
first to closely guard his secrets. The gain to society for granting the
monopoly in this case is that the knowledge might be disclosed a little sooner
than otherwise. The cost is that other and sometimes even smarter fellows
cannot develop those ideas further without a license, not even in the context
of pure research, never mind business.

That hardly spurs innovation. And as for that, it was never the original
purpose of the patent system but is rather a latter-day tacked-on
justification for it, but let us suppose that is its principal purpose. Do you
see that happening? It's certainly not working in the software world.
Elsewhere in the thread there was a reference to a paper debunking some of the
classic supposed success stories of patents related to Watt's steam engine and
Ford's windshield wipers.

~~~
monochromatic
Ah, but now we're just arguing about what constitutes a non-obvious invention.
And I would agree that we need better patent examiners making that decision.

~~~
psykotic
Sure, that is a huge and endemic part of the problem. But if that were all, I
might believe something of the system could be salvaged. Anyway, this thread
has grown too deep already, so let's end it here. Thank you for the
discussion.

------
Y_76
Martin Fowler is a well-respected thinker and leader in this field ...
Software patents are treated as an asset class that can easily be bought and
sold, like a stock or bond. There's a big market for them. And that's a big
problem. The acquisition of these assets generally means that the inventor --
the entity that patent laws exist to protect -- is out of the picture, leaving
those with big money the ammunition to sue, but perhaps not the ambition to
innovate. Patent law is long-overdue for fundamental change.

~~~
bfe
I don't think this passes economics 101. It's often incredibly hard for an
individual inventor to bring their invention to market even with a patent.
Freedom to sell or license their patent instead of requiring every inventor to
also build a successful startup enhances their incentive to invent and their
capability of bringing an invention into the market, in the same way that
freedom to sell oil you've extracted from the Earth enhances the incentive to
extract oil and increases its availability in the market.

~~~
Joeri
That may be true in other fields, but that argument makes some assumptions
about invention and production that don't hold true for software.

First, the notion that production is so expensive that a lone developer cannot
realize their idea. This isn't true. Any developer can build and market a
product single-handedly, in the majority of niches of the software market.

Secondly, the idea that a patentable idea is born first, and then a product is
built based on it. That happens now and then, but it's rare (e.g. RSA patent).
The common case is that a developer sets out to build a better mousetrap,
delivers a piece of working software, and only afterwards realizes they've had
a patentable idea. By that time they also have a marketable product.

------
mrgoldenbrown
If IP rules had been enforced better, the industrial revolution wouldn't have
come to America. Samuel Slater, "Father of the American Industrial
Revolution") was not famous for inventing stuff, but for successfully sneaking
the tech out of Britain, against the rules.

------
iand
The wikipedia page on the Industrial Revolution cites textiles as one of the
three main innovations of the period and notes that the rise of the cotton
mill only occurred after the relevant patent on the spinning jenny had
expired.

<http://en.wikipedia.org/wiki/Industrial_Revolution>

~~~
eddieplan9
But if it was not for the patent law that helped and incentivized the
inventor, the cotton mill innovation might not occur in the first place.

I work for a pharma, and I remembered our CEO discussing patent and generic
drugs. Making generics that bring affordable medicine to the public is a very
important goal of any pharma. But drug discovery (not manufacturing) is very
costly and risky, and patent is the only vehicle to financially recover the
cost of developing a new product and fund the effort of finding new cures.

I am not taking side in the software patent debate, but am just saying patent
has its own value in promoting innovation in making it financially feasible
for things that require lots of effort and resources.

------
Benjo
Discussions like this strike me as pointless. It's pretty easy to imagine a
better patent system. We don't have one because incumbents who benefit from
the current system have disproportionate influence over the politicians who
could reform the system. Until that problem is solved, this and many other
broken systems will never be reformed.

Blaming individual programmers for patent applications, which are probably
incentivized by their employers, seems harsh. This isn't a problem that's
going to be solved by a some optimistic idealists.

~~~
wpietri
Sure, a few programmers won't solve it, but that's ok. Given the massive harm
software patents do, even a modest refusal to participate could yield
significant harm reduction.

And the point of discussion is pretty clear: it's to help shape and propagate
the kind of norm that Fowler is arguing for. Namely, most programmers knowing
that participating in filing bullshit patents is an unprofessional activity.

------
olalonde
> Without patents only wealthy people (or those with wealthy patrons) could
> afford to innovate, and there was little incentive for them to do so.

In 2011, this should read:

With patents only wealthy people (or those with wealthy patrons) can afford to
innovate, and there is little incentive for the rest of us to do so.

------
pragmatic
". It's not uncommon for programmers to talk about patents they've been
involved in getting and how they know how absurd they are. I know it's easy to
get on a high horse here, but I do think that any programmer who cooperates in
getting a baseless patent should be ashamed of themselves."

Patents are a mark of prestige. Even if for something silly.

~~~
ynniv
I'm disappointed at the reception of this comment. I have never respected
software patents, but I am not ashamed that my name is on one. There is
prestige in knowing that you are capable of doing something notable, even if
it doesn't deserve the protections that patents currently provide. I don't
care to do it again, but neither do I fault those who have participated in
creating these patents.

If every respectable developer abstained from the patent system the problem
would not go away, so let's not punish those who create but not benefit. The
only end to this abusive situation is to remove the value of all patents on
software.

~~~
Joeri
Why is the patent a mark of notability of a developer's work? I hold respect
for developers that share their knowledge in plain sight and plain language,
not for developers that cooperate in creating some impossible-to-read legal
document that I will never derive any useful knowledge from.

Or put more succinctly: if you want my respect, don't patent your idea, blog
your idea.

~~~
ynniv
I didn't say that I respected people with software patents, I said that I
don't blame them.

------
bfe
I think there is some divergence of perceptions here. I've worked with a lot
of applicants for software patents, and they're not vaguely involved in
applying to cover something well-known for which they might want to feel
ashamed. Typically they're very clever people with a lot of expertise in a
domain and they know what they've come up with is really new and awesome, and
they're excited to patent it. I think the perception of software patents as a
world of rot are based more on the perception bias of everyone reading and
reiterating the daily cycle of polemics like this one that may or not cite any
specific examples, at least beyond the same handful like the Amazon one-click,
than on the actual state of software patents in general. And while the
occasional bad patent is easy to see, it's less easy to see how the promise of
patent protection helps steer the management decisions of companies to invest
in engineers and computer scientists and research and development, rather than
investing scarce resources in easier and more predictable ways to generate
return on their investment, like hiring more sales people or buying back stock
or spending more on lobbyists.

~~~
xbryanx
Can you provide an example of one of the exciting and unique patents you've
run across? This would go a long way towards supporting your point.

The specific examples I've seen are ridiculously broad and far from novel.

------
pragmatic
Linus has a good take on IP in general in his book
<http://en.wikipedia.org/wiki/Just_for_Fun>

Wonder if he's changed his mind since?

------
WalterBright
One partial solution would be to reduce the term of patents.

