

A hopefully useful thought on software patents - superqd

A while back I saw a post which pointed to https://defendinnovation.org/.  It reminded me of a thought I had on software patents that I hadn't seen expressed anywhere else.  I decided to post it here to get your feedback.<p>I had always had some sort of intuited judgment regarding software patents, and my judgement was that they were wrong.  That they were unjustifiably granted.  But during an argument about this with a co-worker, I couldn't quite articulate a compelling argument as to why. They just were.  I had trotted out a lot of the sorts of arguments that we all make, but they just didn't feel compelling.<p>I thought about it and slowly realized that I actually didn't have a problem with software patents, per se.  It was that software patents were an especially egregious example of an underlying problem I had with patents in general.  The problem was this:<p>We, as a society, pay the same price for different goods regardless of value.<p>The price we pay to incentivize an inventor to disclose their invention is with decades of protection from competition. For a utility patent, that's 20 years from the date of the patent grant.  And we always pay the same price, regardless of the underlying value of the invention to our society.  So whether you invent a new method of swinging in a swing or a new drug to fight cancer, we pay the same price to know how it works.<p>And I think that's one of the key perspectives that often gets overlooked.  We are paying for knowledge.  The inventor is supposed to have figured something out that even skilled practitioners in the art hadn't thought of.  We are paying for the secret sauce, so to speak.  I think sofware "inventions", for many of us skilled in the art, seem so obviously non-insightful that we can't believe society has paid for such "knowledge" with a patent. Many of us realize that we don't even need to read most software patents to learn how to do what it explains.  We're paying for "I was here first", rather than "I finally solved the problem no one else could".  Yet we pay the same price regardless.  That's why the Defend Innovation site wants to limit software patent terms to 5 years.  Patent protection should be proportional to the value of the invention.  But I believe that should be true for any invention.<p>That's when I realized I wasn't against software patents at all.  I was against paying the same price for items of different value.  Given that revelation (in my own mind), I would actually be fine with a software patent if its contents were the only way to learn how to do something that was exceedingly difficult (many had tried, all had failed).  But that applies to all patents (at least utility).  So I wouldn't agree with the 5 year term for software, what I preferred was for all patent terms to reflect their value.  Most software patents would probably not get a patent term long enough to cover the application process (1-click).  Some might deserve 30 years of protection (general AI, etc).  The same goes for non-software.   It's conceivable that a patent might actually be worth 50 years of protection (a small battery that weighed an ounce but provided 100 years of current, etc).<p>For me, then, this was really the essense of, and the strongest form of, the argument against software patents.  Since I was so familiar with software it was much more obvious that we had all over paid.<p>Thoughts?
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hpatel
Patents help the inventor in the following ways: 1\. Capture value/recover
costs from the application of the invention. Inventors gain, society's gain.
2\. Receive portion of value created by third party who applies the patent.
Inventor's gain, society's gain, and third party's gain from application of
patent and loss from sharing patents. 3\. Restrict others from using the
invention to create value. Inventor's gain, society's loss, third party's
loss.

Most people against patents have a problem with 3). But, what if we figured
out a way to standardize 2)... i.e. rather than preventing everyone else from
using the patent, we figured out a standard system to proportionally reward
the inventor with the value created by the application of the invention. Say
10% of all money made by application of patent (via direct/indirect
monetization).

In such a system, the original intent behind patents of rewarding the inventor
is maintained, society as a whole is able to benefit from the invention, and
pace of innovation is accelerated.

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trrichard
My thoughts are software patents are easily distinguishable from other
patents, that the EU has no problem distinguishing them, that in theri very
nature they impede progress because in software everything builds on
everything else very quickly and that's why there IS rapid progress in
software, progress the consumer is the beneficiary of and which also creates a
very fertile business climate for companies to create products that turn
profits.

The other way, it's all about lawyers and their hourly fees and innovation-
and in the end business itself- suffers, except of course for the business of
lawyering.

Lawyers are a virus who have injected themselves into an industry and a sphere
of human activity they have no place in and was doing astonishingly well both
in terms of innovation and economic activity before they showed up/

~~~
superqd
On your first point, I agree. Software patents are easily distinguishable from
others, and I think most people are able to discern the difference. I believe
that's why most of us find their existence so repugnant at first, because we
are so familiar with what software is, and how little value is actually
contained in the content of a patent. Which bubbles up through our intuition
as a red flag.

My main issue is that we should examine the _why_ of why we don't like
software patents, generalize from it and re-apply that to patents in general.
My point is that we'd find it's not software patents in particular that are
the problem, it's the fact that we as as society overpay with too much
protection for something of so little value. Since we end up paying years of
protection for items of so little worth, it stymies innovation in a great many
instances, and diverts capital away from innovation and instead to the courts.

And yes, I too could rant for days about the lawyers ;^).

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trrichard
The software patent forces are on the ropes and they are now staging a full on
PR campaign to try to stem the tide of professional sentiment against them.
It's not going to work, because at heart, software patents are simply a bad
idea.

~~~
superqd
In general, we would probably be better served eliminating software patents
altogether, even though these days I'd be willing to argue that it's possible
that some software patents might actually be justifiable. However, given that
such patent-worthy applications are far fewer in number, it's very likely the
net benefit of disallowing software patents would far outweigh the cost.

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ggchappell
Insightful. So, is there a way to price patents better? Some kind of free-
market-ish set-up that would give organizations incentives to set the proper
value ... ?

Another thought. There are (at least) two ways for society to subsidize
innovation: patents and grants. Patents subsidize after the fact, by
legislating a temporary monopoly. Grants subsidize before the fact, by paying
some of the costs of innovating. Both of these systems have problems, but the
grant system at least puts some consideration into the value of the benefit to
be provided.

~~~
superqd
I think so. If a patent is applied for, the method/solution it provides
(physically or otherwise) should be reframed and published as the problem to
be solved and have the public polled for whether they agree to pay the cost.

For instance, suppose I invent a new battery, but claim that even though it's
the same size and weight as a standard 9V battery, it can last for 40 years at
full load. The company making the application could suggest a desired length
of time for the patent in months. The USPTO then puts the following on their
site:

"A patent has been applied for on technology to produce 9V batteries of the
standard dimensions and weight as existing batteries, but with a mean lifetime
of 40 years. The expected cost to produce one such battery at scale is $1.25.
The applicant is asking for 480 months (40 yrs) of protection to exclusively
sell and/or license this technology.

Do you agree to these terms?"

Then the public could vote yes or no. Obviously verification of voters of some
sort to prevent fraud, etc, would be needed, but the principle is that the
company can set an "asking price" to reveal the technology and we could vote
on whether we agree to pay. We'd need a sufficient number of votes before a
result would be binding, and the company to could decide to reduce their terms
to get more votes (not increase).

That's just a possible mechanism, lot's of things to tweak, but I don't think
it's impossible or even impractical in reality to do such a thing (or at least
something in the spirit).

The grants are useful as well. I think things like the X Prize are a good
potential solution to some of the innovation dilemmas we face now with
patents. We could target what the problems we most want solved by offering
$$$$ to the person/group who comes up with a solution. If the dollars are
large enough, then the public could even ask/expect to receive all the rights
to exploit the solution should one be found/submitted. And you are right, the
dollars allocated to the incentive (grant or prize) would directly reflect the
value society places on it (hopefully).

