

Patents are living up to their ideals - amirnathoo
http://justinsb.posterous.com/patents-are-living-up-to-their-ideals

======
akeefer
One particular example doesn't make for a very compelling argument. The vast
majority of software patents (probably above 99% of them) are A) never
followed up with scientific papers, B) represent nothing that someone else
trying to solve the same problem wouldn't come up with, and C) are written so
incomprehensibly that no one could ever derive any intellectual value from
reading them.

Throwing out counter-examples of "good" software patents doesn't really attack
the thrust of the main argument put forward by the anti-software-patent
people, which is that _almost all_ software patents are total trash that
should never be granted.

I think you can make one of foudarguments here. 1) You can dispute the
assertion that almost all software patents granted should have failed the
obviousness/novelty test and/or be invalidated by prior art. 2) You can argue
that the patent system should be tightened up so that most patents aren't
granted, but to still allow certain types of patents (encryption algorithms,
whatever else) and then discuss how to classify what sort of patents really
are useful. 3) You can admit that but argue that the good done by the "good"
patents outweighs the evil done by the "bad" patents. 4) You can argue that
you should ditch all software patents entirely because the harm caused by bad
patents vastly outweighs the good done by good patents, and that it's too
difficult to legally distinguish between the two, so on balance it's better to
just disallow them

Again, keep in mind that copyright and trade secret law cover already cover
the theft of the software itself, and that plenty of people online talk about
what they do and how they do it without any sort of patent protection.

So I'm not sure which argument this article is trying to make (though it's
obviously not #4): are you arguing that software patents aren't, on average,
total garbage? That standards should be tightened up to allow only a limited
subset of what's currently patentable, and that the Google patents fall under
that umbrella? Or that the good done by these few patents somehow outweighs
all the harm done by all the garbage patents and associated trolling?

It's totally valid to point out that not all patents are a joke, and that some
good can come of them, but that in and of itself doesn't really address the
real meat of the debate.

~~~
justinsb
I'm arguing simply that Google's papers were IMHO the most influential
Computer Science papers of the past decade, and they wouldn't necessarily have
been published without patents. The patent system is designed to encourage
exactly the sort of disclosure we saw here, in this particularly important
case.

I chose this 'one particular example' because it's the inventions where the
papers are published that are important; not the 'bad' patents which should
never have been granted and where the USPTO overturns the patent on re-
examination (as I suspect many bad patents, like the linked-list patent, would
be.)

I like the idea of a standardized patent argument list! I'll take argument #3
please.

~~~
akeefer
I'm a fan of clearly-delineated lines of argumentation since it's difficult to
have a debate if people just talk past each other. It's much more fruitful if
you can really pinpoint exactly where it is that you disagree with the other
person: if I think "B" is true and you disagree, it's much more useful for me
to say, "Well, I think A->B and A, so thus B is true" and then you can say
"Well I agree that A->B but think A is false" or "Well I agree A is true, but
I don't agree that A->B", and then we can have a much more useful conversation
instead of talking past each other.

In the case of the patent issue, there are so many entangled issues that it's
often difficult to find the real points of agreement and disagreement.

I'd be interested to see someone actually try to make the argument that more
good comes from the current system of software patents than would come from a
system with no patents, since from my perspective the balance is pretty
negative. On the good side you have inventions/work that wouldn't have
happened without patents, the resulting utility created by them both in the
form of direct usefulness to end-users and in terms of economic activity they
fostered, and the knowledge sharing enabled purely by patents and all its
resulting downstream effects.

On the bad side, you have all the inventions and work lost due to patents: all
the work not done because of fear of patent litigation, jobs lost due to
companies sued of existence by patent trolls, all the resulting loss of
utility to end users, and the economic cost of diverting so many resources to
patent litigation.

Personally, I would argue that far more is _not_ done or is lost in the
software world because of patents than is gained because of them; if you just
eliminated all software patents I think you'd see a net gain in worldwide
utility rather than a net loss. Copyright and trade secret protections mean
that most software activity would still happen (that's what pretty much
everyone uses for protection anyway: only big shops have the resources to
really use their patent portfolio, and then it's often purely defensive), so
the main loss would be in terms of disclosure. What you'd lose in terms of,
say, not reading papers on PageRank, you'd more than gain back in terms of
startups that don't get shut down and by diverting all that money spent on the
legal system to better purposes.

~~~
justinsb
I agree that reasoned and clear debate is the best approach. I've tried to
make the case 'pro' by citing the impact of PageRank/MapReduce/GFS, and
suggesting that the impact is no less than reshaping the way we think about
computing.

So what are the (non-anecdotal) examples of the costs? It's also important to
put those costs into context, because everything has negative unintended
consequences in the real world. What's the total annual expenditure on patent
litigation benchmarked against (for example) medical malpractice cases? Which
companies have been shut down by patent trolls benchmarked against (for
example) the companies shut down by new environmental legislation? Which
inventions are available on some platforms and not others (e.g. ClearType),
and what's the productivity cost of them benchmarked against (say) not
pursuing remedies against the Microsoft monopoly?

~~~
greyfade
See this book for a complete discussion on these topics and more:
<http://levine.sscnet.ucla.edu/papers/imbookfinalall.pdf>

That book weighs all of the costs and perceived benefits of patents form every
angle in every industry and makes a very fascinating conclusion.

------
jcl
The "disclosure" argument would hold more water if people actually read
software patents, or went out of their way to license patents from other
companies. But it seems to me that the vast majority of software patent cases
are ones where the infringing company has either come up with the invention
independently or imitated the external behavior of something else. In which
case, the disclosure aspect of software patents is practically worthless.

The article argues that we wouldn't know how Google works without patents, but
the truth is that those Google patents alone don't get you Google performance
-- most of their system is protected not by patents but trade secrets. And
this has not stopped Yahoo, Bing, or others from coming up with viable search
engines.

~~~
justinsb
But people do read the papers, and I'd argue that the papers are only
published because the patent has been filed. I'm willing to bet that 80% of
the hackers here have read the MapReduce paper (and for anyone that hasn't,
you should!), but I agree I'd be surprised if people have read the patent.

Independent invention is a problem, and that's why there's a non-obviousness
test for patentability. Of course, that's a very tricky thing to implement in
the real world. So what you're really arguing is a higher standard of non-
obviousness; I hope you'll be submitting that proposal to the USPTO.

I'd actually argue that Google's performance _does_ come from MapReduce. The
trade secrets (that we know of) are around their customized hardware and the
weighting factors in their algorithm, but I'd argue that makes a relatively
small difference compared to Google's big idea, which was figuring out how to
harness together lots of cheap computers, rather than investing in making each
computer more efficient (e.g. Altavista, whose original raison-d'etre was to
demonstrate how the DEC Alpha computer was powerful enough to support
searching the whole Internet of the day)

~~~
kiba
It would seem to me that I cannot use the described algorithm and put it to
work without landing in possible legal troubles.

These patents may actually slow down technological development rather than
increase the pace.

We get the fringe benefit of knowing something for real but we are unable to
put it to work.

In the world where open source hardware companies like Makerbot Industries are
coming into existence and that the phrase "the atoms becoming the new bit" is
becoming more true everyday, this is a worrying obstacle in technological
progress. People cannot voluntary share and benefit from each other without a
fear of patent holder infringing on their ability to do so, no matter how
innovative he might be.

The patent system is incompatible with certain business models that relies on
the openness of their product, and a whole path of technological development.

This is the price we pay for assuming that people won't share information
about algorithms and other useful knowledge. The only question is, will the
positive black swans of the patent world will truly outweigh all the lost
potential of the open source paradigm?

Just remember, positive black swan in the open source world can happen
too!(Linux, Mozilla Firefox, and more)

------
dpifke
Academics continue to publish papers in fields where patent protection is
unavailable (history, literature, etc.), so I fail to buy the argument that no
scientific papers about computing would be published if it weren't for
software patents.

------
frognibble
The author uses the timing of Google's patent filings and published papers to
imply that Google would not have published the papers without patent
protection. I think the timing of the events does not provide enough
information to determine what Google would have done without the patents.
Google might have freely published the papers in a world with no software
patents.

~~~
kiba
It is probable that Google would have published their algorithms after a long
period of time. By the time that happen, the old algorithm would probably have
no competitive advantage anyway.

------
kiba
I once read/heard an argument against the patent system in that the patent
system didn't really help disclose secret inventions.

What it does is shift the focus of inventions from the highly secretive kind
to inventions whom inter-working would be rapidly discovered anyway.

Something to think about.

(BTW, everyone should read Against Intellectual Monopoly at
[http://levine.sscnet.ucla.edu/general/intellectual/againstfi...](http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm))

------
gojomo
Google only published because they felt secure with the advantage conferred by
their patents?

That idea only makes sense if Google now starts enforcing their patent-granted
monopoly on these techniques: suing people who are doing the things they've
published. They haven't.

Until they do, this model of Google's patenting/publishing motivations is
flawed.

