

Are Software Patents Evil? (2006) - joejohnson
http://www.paulgraham.com/softwarepatents.html

======
ghshephard
Some Drug Patents cost the companies who discovered them hundreds of millions,
and in some cases billions of dollars. The period of time might stretch over
decades, require hundreds of researchers, and involved thousands and thousands
of wrong turns. These drugs will never be created by private enterprise
without the monopoly protection of a patent - so we either forego future
development of those drugs, or socialize the process.

On the flip side, I find it hard to put Drug Patents into the same category as
a software patent that three engineers with a half-formed idea can sketch out
in a period of a couple days, and then finish off with two or three round
trips to the patent office.

I (and this is where I probably disagree with Stallman) think that truly,
truly innovative algorithms, such as public key encryption, should be greatly
rewarded for a limited time as a result of being shared with everyone.

But - "One Click Purchase" - a process that any high school student with
knowledge of cookies could have invented in under 45 minutes if asked to, does
not meet that bar.

So - put me in the "For non-obvious patents" column.

~~~
neilk
Except that it's still very hard to make distinctions about what is innovative
in software design.

Node.js is pretty innovative. Is anything in there patentable? I think most
people would agree it isn't.

You can't use the metric of capital investment either. It takes a lot of
capital investment to mine BitCoins these days. Should I get a patent on the
number that I find? If not, what's the difference between that and an
algorithm I found through tuning a neural net, or through genetic algorithms?

I agree with you that RSA is the paradigmatic example of software that ought
to be patentable. I still can't think of any objective way to show that, other
than the judgment of other experts.

~~~
bfe
This really seems to boil down to arguing that the patent examiners in the
software art unit need to do a better job evaluating whether patent
application claims really are novel and non-obvious, like they're supposed to
under current patent law.

For several years they were really overwhelmed as the volume of software
patent applications exploded and they couldn't hire well-qualified software
patent examiners at nearly the same rate. Traditional patent examining
practice of looking primarily at existing patents and secondarily at academic
publications to show the state of the art also tended to miss a tremendous
amount of publicly known subject matter. The examiners have been getting
steadily better and more creative in searching for references though.

------
saturdaysaint
The secrecy section is interesting. The new web vanguard (thinking of Google
and Facebook primarily) is motivated to shrug off, if not outright undermine,
the patent system precisely because many of their most valuable assets are
hidden and very difficult to reverse engineer, let alone patent. Their main
assets aren't user-facing features or UI conventions - they're distinguished
by hidden stores of data and advanced algorithms and tools for which few of
their employees have complete source code access.

~~~
bfe
This is a great point and I've seen it in action many times among clients -
calculating whether to apply for a patent on a new idea or to protect it as a
trade secret. In cases where the value is mainly in inaccessible firmware or a
manufacturing process where it would be hard for someone to reverse engineer,
and even harder to detect if someone did manage to copy it, they typically set
up procedures to keep it as a trade secret.

The other side to this, that I've seen among clients, is they really do often
make decisions whether to devote money to developing a technology based on the
expectation of whether they'll be able to patent it.

------
ghshephard
A previous General Counsel of ours divided the community of IP lawyers into
two categories - those who work hard to build companies, protect created
intellectual property, and the other category - the attorneys who do the
opposite - destroy companies and leech off wealth. He referred to those
attorneys who do work for Patent Trolls at an all hands meeting as "bottom
feeding lowlifes".

I sometimes wonder how miserable Patent Attorneys who end up working for
patent trolls must feel about themselves, or whether they've kidded themselves
into believing they aren't part of the problem. Or whether they are just paid
so much money they don't care.

~~~
bfe
I know one active patent troll who is also a patent attorney, who wrote and
prosecuted his own patent application and now writes his own threatening
letters and licenses to the patent, has made a lot of money from it, and shows
only delight at the money. He also still works for his law firm, and spends
part of his time doing patent work for outside clients. I've long wondered how
the rest of his firm felt about that.

------
petegrif
"One thing I do feel pretty certain of is that if you're against software
patents, you're against patents in general."

This is possibly the most important statement in the piece.

~~~
thyrsus
Yes, it is the most important statement, and I disagree with it.

Software expressions are a form of lambda calculus, i.e., mathematics, and
ought to be outside the proper domain of patents, whereas the proper domain of
patents is the material. 1+1 is always 2. One drop of water + another drop of
water is sometimes one drop of water and sometimes two drops of water and
sometimes something else. One ball-bearing + another ball bearing is usually
two ball bearings, but one needs to be careful about their environment, or you
end up with something that no longer constitutes two ball bearings - and that
is the crux of the matter. If your patent is intrinsically implemented by 25
or more Schrödinger modelled actual entities (e.g., just about any molecule
larger than H2O) you're now operating in the material world, the old rules
apply, and good luck to you. The Platonic 0 and 1 and the finite (though
arbitrarily large) operations on them should not be bound by those rules.

And yes, it is a religious belief - in mathematics.

~~~
bfe
Software is represented and conceptualized as math. But when you put fingers
to keyboard you set in motion a bunch of electrons and magnetic domains;
you're assembling mechanical objects into a complex physical machine, a
computing system that's in a new physical state it never existed in before.
Nothing about the process couldn't be done instead with hydraulics or gears
and levers instead of electrons and magnetic domains, except it would be a lot
bigger, slower, harder to ensure a precise 1:1 relationship with our
mathematical abstraction of it, and harder to ignore its physical nature.

~~~
msg
Granted. But surely the prior art on bits being transmitted through a general
purpose computing machine, whether mechanical, magnetic, mental, musical, or
magical, is now unassailable. What is novel is not physical, what is physical
is not novel.

~~~
bfe
So every software implementation of anything is not novel? Are you really sure
about that?

I am wrapping up a tremendously complex and awesome patent application today
that my client is essentially implementing in hardware, but there is
absolutely software involved, and I also drafted the claims so that a bunch of
stuff my client happens to be implementing in custom ASICs is also covered if
the same magic were also done by a general purpose computer running the same
functionality in software. It's not a distinction almost anyone will ever be
able to tell the difference with (except the custom silicon is going to
function faster than a software-on-general-purpose-computer could do). Are you
sure that difference would automatically make it not novel and undeserving of
a patent?

~~~
msg
Sorry I didn't see this earlier.

I believe there is no meaningful distinction between an algorithm running on
general purpose hardware and the same algorithm running on custom hardware. If
you'd enforce your patent by claiming that someone else was barred from
implementing an algorithm you own, I'd say that "what is novel is not
physical". Algorithms are not within the purview of the patent office (or I
should say, should not be).

If you'd enforce your patent by saying that someone else was barred from
inventing your custom hardware to run this fast algorithm, I guess I'd want to
know if the leap from the algorithm to the specific ASIC is "obvious to one
skilled in the art".

------
aidenn0
"When a company starts fighting over IP, it's a sign they've lost the real
battle, for users."

What does this say about Apple's lawsuits?

~~~
monochromatic
That's an interesting line from pg, but I think it's a little overbroad. There
are a whole host of reasons a company might start fighting over IP. Sometimes
it's a bad sign, but not always by any means.

~~~
pg
Yes, Apple shows you're right. I wouldn't be surprised if the cause in their
case is that Steve is personally angry at having his stuff copied.

------
dools
_"Since software patents are no different from hardware patents"_

I stopped reading at this point since PG appears to have just stated that
software patents are the same as other patents but not really discussed this
point very thouroughly.

I would disagree completely. Software patents are certainly nothing like any
other form of patent.

I'll leave the copyright vs. patent argument for the moment (because although
there are some cases where software patents are equivalent to trying to
patent, say, a minor 7th chord), but I think the key difference is this:

Software patents protect IP that is more often than not, common knowledge or
completely trivial but where the implementation of that idea or concept will
prove the success of the venture. "One click shopping" is like the canonical
bullshit software patent. There are a million different ways to skin that cat,
and patenting that as a concept is absurd.

Other patents protect inventors who come up with a unique idea, process or
design, the implementation of which is relatively trivial once you have that
insight or knowledge.

Things like fabricating a new kind of mouse trap are just so easy that anyone
with a couple of bucks can do it: buy competing product, send to china, make
profit.

But I can't just go out and build, say, Farmville, unless I had all the source
code and the engineering team at my disposal.

I'm not sure how to _codify_ that distinction, but I think that's the key.

It's a bit like trying to write a computer program for common sense. I can
tell the difference between good and bad patents (and I've never seen a
software patent that I didn't think ridiculous) but codifying it in law is
another story.

~~~
bfe
It seems like you're saying though that software patents are being applied to
things that are obvious - in which case, that would just mean the patent
office isn't doing a proper job of not granting patents to subject matter
that's obvious under current law.

~~~
dools
Not so much obvious as fundamental. Something like "One Click Shopping" is a
refinement of user experience - it's not the same as having a chemical process
that allows greater transistor density.

The former requires skills and experience within a given field but isn't some
kind of grand invention.

The latter is something that would require great research, insight and
discovery (and no, I don't think usability research counts here).

Patenting one click shopping is like patenting being really good at something.

Like if I were an amazing neurosurgeon, and I came up with this way of making
sure I had a really steady hand - a way of breathing or a way of holding my
wrist, and then I patented that and said that, even if someone came up with
the same idea completely independently then they need to pay me for it.

~~~
bfe
The one click patent is a really unfortunate representative of software
patents. I've worked on software patents where the inventors are computer
science professors at top universities. Those patent applications are at least
as hideously complex and thrillingly ingenious as in the most technically
complex hardware patents I've worked on, and, obviously I'm biased here, but
at least as deserving of patent protection.

~~~
dools
Okay so - this is the challenge: how do we _codify_ that? It's like I'm saying
we can look at these, as humans and use our common sense and say "This is
reasonable" and "This is not".

Let's look at something I did recently: I came up with an idea for an ORM
which doesn't require you to create any boiler plate base classes and uses the
primary key structure of your database to intuit how to join tables
together.[1]

Do you think that's patentable? I think not and to patent that would be total
bullshit. I don't know what prior art exists (I've not seen anything that does
this before but then I didn't really look all that hard) but even without
prior art patenting this process would seem ludicrous to me because it's like
patenting a workflow or a formula.

It's almost like the hardware analogue of that is patenting a way of using
something, rather than an actual invention. Is that the distinction? Software
patents that are awarded for figuring out how to improve the way we use
existing inventions, as opposed to real inventions?

[1]<https://github.com/iaindooley/PluSQL/>

~~~
bfe
Sorry, I haven't been ignoring you, I've been struggling with how to respond.
I think for now I will have to leave it at:

(1) since I'm a patent attorney, looking at your code and advising you on its
chances of patentability would constitute legal advice and potentially
initiate aspects of an attorney-client relationship outside of any retainer
agreement, and I'm not going to do that;

(2) in the off chance that you ever do want to try to patent something that
involves software, your future patent attorneys will thank you for starting to
train yourself now to get out of the habit of making public posts about how
ludicrously unpatentable your work is, no matter how much you might think of
any current project at the present moment; and

(3) talk to a good patent attorney of your own, one who spends all her time on
patent law subject matter, as soon as possible in the process, which will
almost certainly be before you think it should be, about anything and
everything you might ever possibly want to patent in the future.

------
sedev
I wonder whether the recommendation at the very end, about starving patent
trolls of lawyer resources, is more or less viable now than it was five years
ago. Although there are certainly plenty of megafirms, I'm not sure that the
legal world is coherent enough for that to be a great strategy. Plus you need
maybe two full-time lawyers and twice that many paralegals to operate on the
Lodsys level of suing smaller developers and working your way up.

Patent trolls, like terrorists, take advantage of asymmetric resource usage.
So trying to attack their supply of lawyer resources might not work.

~~~
nextparadigms
I wonder if this would really work:

[http://jeremy.tregunna.ca/articles/2011-07-28/fight_software...](http://jeremy.tregunna.ca/articles/2011-07-28/fight_software_patents_with_patents_its_not_what_you_think_honest)

------
seles
"Patent trolls are hard to fight precisely because they create nothing. Big
companies are safe from being sued by other big companies because they can
threaten a counter-suit. But because patent trolls don't make anything,
there's nothing they can be sued for."

This is a very good point and part of the problem. But there is a loop hole
for big companies, that I can't help but wonder if it has even been used. A
big company could, possibly under the table, use a small company to sue
another big company, leaving no way for the sued to fight back.

~~~
onemoreact
Shell companies have limited value in this case. Because if Microsoft uses XYZ
corp to sue IBM then IBM can just sue Microsoft again and again.

~~~
seles
Only if IBM knows Microsoft is using XYZ

~~~
ghshephard
Isn't this somewhat simliar to how Microsoft funded SCO to sue companies that
used Linux? Microsoft didn't want to be in the position of suing their
customers, so they used SCO as a shell to do their dirty work for them.

------
s8qnze982y
>> Frankly, it surprises me how small a role patents play in the software
business. It's kind of ironic, considering all the dire things experts say
about software patents stifling innovation, but when one looks closely at the
software business, the most striking thing is how little patents seem to
matter.

This is not true any more. At least some developers withdrew from the US
market because of patents fear (specifically, mobile app developers) - this is
a business changing phenomenon.

~~~
monochromatic
Who?

~~~
s8qnze982y
[http://www.guardian.co.uk/technology/appsblog/2011/jul/15/ap...](http://www.guardian.co.uk/technology/appsblog/2011/jul/15/app-
developers-withdraw-us-patents)

------
caf
_Whether they encourage innovation or not, patents were at least intended to.
You don't get a patent for nothing. In return for the exclusive right to use
an idea, you have to publish it, and it was largely to encourage such openness
that patents were established._

How common is it in practice for useful information to be gleaned from
published software patents? How many of us have ever had a problem to solve,
and thought: I know, I'll search the patent database to see if there's a
clever solution that's been disclosed by the inventor! I would suspect very
few. Which implies that we're not getting much out of "our" side of the
bargain.

~~~
wes-exp
Indeed. I don't think anybody is benefiting. Quite the opposite. Software
patents are seen as just a bunch of land mines that make it harder to get the
job done. There is no thought of making use of them whatsoever.

------
Peaker
A difference between software patents and other patents that pg is missing, is
that a piece of software is always a composition of thousands of (patentable)
ideas. A non-software product is typically a composition of 0-10 (patentable)
ideas.

That means that the odds of any hardware product of accidentally hitting or
being encumbered by a patent are nearly nil. The odds of a software project of
_not_ hitting any patent are nearly nil.

This difference is circumstantial and not a fundamental property of things --
but a very important one.

~~~
yagibear
Non-software products are quite complicated once you look beneath the surface,
e.g. even a cheap toaster has 400 parts
[http://www.ted.com/talks/thomas_thwaites_how_i_built_a_toast...](http://www.ted.com/talks/thomas_thwaites_how_i_built_a_toaster_from_scratch.html)
. Sure, the number of distinct parts would be lower (perhaps 100), they tend
to involve more mature technology for which any patents might have now
expired, and the toaster manufacturer probably buys many of the parts rather
than manufacturing them themselves, but I would think that the odds of an
advanced hardware product accidentally hitting a patent are significantly more
than nil.

------
podperson
"One thing I do feel pretty certain of is that if you're against software
patents, you're against patents in general."

I'm glad he says this because it's an important point. You can't stop software
patents without stopping patents altogether, and that means Intel can't
protect massive investments in new techniques for creating faster CPUs without
deliberately obfuscating its hardware, etc. etc. etc.

Kill patents and we're in for a world of reverse-threaded screws, gadgets
filled with glue, and on and on.

~~~
akeefer
That's totally incorrect. Why can't you draw the line at software? Books
aren't patentable. Music isn't patentable. Paintings aren't patentable.
Mathematical formulas aren't patentable. So why is it that you have to be
against patents in general just because you're against software patents?
Patentability is one method of protection out of many that can be applied, and
it's been applied to particular kinds of "inventions" and not to others for
hundreds of years.

Software is protected by copyright and trade secret protections, so even
without patents it will always be intellectual property that is strongly
protected and which has material value.

~~~
brlewis
I also disagree with pg on this point, but with different reasons. The problem
with your reasoning is that books and paintings aren't isomorphic to
patentable machines in the same way that software is.

~~~
akeefer
Ah, but that's where the problem is: just assuming that isomorphism is enough
to justify patentability. While software can do the same things machines can
do and are isomorphic in that sense, that _doesn't_ imply that they're
isomorphic in the sense that's important for patent protection.

Machines aren't patentable because they do stuff: they're historically
patentable because new ones take a lot of work to create and they can easily
be reverse engineered and copied, so they're patentable because of the
pragmatic tradeoff that says that society will be better off if machines are
patentable, because it gives people an incentive to create and share
knowledge, knowing they won't be stolen. That same justification applies to
why pharmaceuticals are patentable: it's a huge amount of work to create a new
one, and once they're created they can be copied for a fraction of that amount
of work, so without patents people won't research them. Machines are
pharmaceuticals are in no way isomorphic in that they do the same sorts of
things, but they do share the same sorts of qualities that make patents a net
win for society.

Software doesn't share those characteristics: the difficulty of a given
software "invention" tends not to be high (except for things like compression
or crypto algorithms), similar "inventions" are likely to be arrived at
independently, copyright and trade secrets protection work well enough to
motivate people to do it, and outright duplication of a program without
stealing source code requires a significant amount of work due to the size of
any complex program. (i.e. you can try to copy photoshop down to the last
behavior, but it's going to take about as much work as writing photoshop
took).

Therefore, I don't believe it's to correct that since you can replace a
machine with software, and the machine is patentable, therefore the software
is patentable. The machine isn't patentable because of what it can do, but
rather due to the inherent qualities of mechanical inventions, and those are
things that simply don't apply to software.

~~~
podperson
You're ignoring the important middle-ground, which is machines with software
parts which, today, includes almost all machines.

If I make a machine with a vital mechanism in software why is it not entitled
to the same protections as a similar machine which implemented the same
function in hardware? And when does hardware transition to software? If it's
an analog circuit it's hardware, but digital is software? ROM is hardware but
EPROM is software?

If someone clones my "mechanical" device by implementing the patent-protected
part in software is that a violation?

Assuming stuff is either like a sewing machine or like Photoshop is missing
the point.

------
rubinelli
An interesting idea than cropped up in another thread was taxing IP according
to its valuation. If I find a million dollars in gold in my backyard, I'll
have to declare it in my tax form, so if I stumble upon and patent an idea
that I think is worth a million dollars, isn't it fair that I pay taxes on it?
Then later if I sue a company I can't say my idea is actually worth 20 million
dollars.

~~~
kragen
It looks like, in the US, you actually get taxed on the gold when you sell it,
not when you dig it up — [http://www.irstaxattorney.com/tax-topics/irs-audit-
technique...](http://www.irstaxattorney.com/tax-topics/irs-audit-
techniques/Placer%20Mining%20Industry%20-%20Chapter%2013%20-%20Inventories%20and%20Uniform%20Capitalization.asp)
says:

"It is not uncommon to examine a return where the taxpayer claims to be in
production yet keeps no inventory. Since the gold recovered must eventually be
recognized as income, inventories must be maintained."

This is precisely equivalent to the situation with patents.

------
sukuriant
Would we as a culture be so up-in-arms about patents if they lasted ... 3-5
years in the CS industry/any-other-ethereal industry?

~~~
brlewis
No, we would be about 1/4th as up in arms as we are now.

