
Why Software Patents Are Bad, Period - doppp
https://mollyrocket.com/casey/patents.html
======
Gibbon1
A friend who is a patent lawyer gave me a short spiel on why software patents
are bad. I'll repeat it.

We have two types of intellectual property protection. Patents and copyright.
And they are oriented towards too different categories.

Copyright is designed to create a working market for artists, writers,
musicians, etc. These people's work is characterized be low output and hit and
miss success. A writer might complete a two dozen works and two of which make
any money. So you need protection on the order of a human lifetime.

Patents. Patents are totally misunderstood. The core of a patent isn't an
idea. Nor is it the answer to a question, how do we do X. Really the core of
the patent is the question itself. Knowing which questions are important is
what is hard. And patents traditionally apply to physical things, because the
physical world is very hard to reason about. It takes a lot of work to figure
out and that is what needs protection. The proper period of protection is the
course of a product lifecycle. So 20 years, something like that.

Software doesn't fit into either of these. Primarily because for most software
the output is determined very mechanically from the requirements. (Unlike, gee
a flying car would be nice, or write me a beloved novel that people will still
buy 50 years hence). And software ages like yesterdays fish. His comment is,
Windows 3.1, 25 years old and who cares. But it's copyrighted for another 75
years.

So software needs it's own category of protection, yes but that is much
shorter.

~~~
lordnacho
Doesn't that argue for an ad hoc expiry? Product cycles in mobile phones and
washing machines are different.

~~~
PatentTroll
Yeah, it's an impossible to implement idea. Lawyers would game the hell out of
that system.

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chrisbennet
A great argument against software patents is this:

Patents are designed to "promote the progress of science and the useful
arts".[1] In the case of software, patents are a net _drag_ on innovation and
thus not worth the cost. Software developers are innovating _in spite_ of
patents, not because of them.

[1] _" The Congress shall have power ... To promote the progress of science
and useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries"_

~~~
jstanley
> In the case of software, patents are a net drag on innovation and thus not
> worth the cost. Software developers are innovating in spite of patents, not
> because of them.

I agree with you, but for the argument to have any weight you need to show
that it is true, not simply state it.

~~~
chrisbennet
OP here, someone down-voted you so I up-voted you for making an excellent
point.

------
PatentTroll
Copyright is no substitute for patents. If you implement that same thing in
another language, it would probably be different enough to avoid copyright
infringement. So the fact that this author has licensed software under
copyright has nothing to do with copyright's effectiveness in protecting their
ideas.

Also, this author is apparently unaware that "pure software" patents have
never existed, and do not exist today. This is especially true in the post-
Enfish world we now live in.

The author is spot-on that obviousness is broken, that's true. Also a good
point that patent quality is ill-defined. But those of us who work in this
industry absolutely know it when we see it.

Overall, this article doesn't do a great job of explaining what is actually
broken and why software patents suck. But saying that software as a class
should not be protected like other forms of labor is insulting to software
developers. What a software developer does is just as important as what a
mechanical engineer does.

------
meshr
Is there alternative to patent system for anyone who just want to have a prove
that he was first (just in case)? Something like store patent in blockchain.

~~~
etendue
You can publish in Research Disclosure
([http://www.researchdisclosure.com](http://www.researchdisclosure.com)) which
exists expressly for this purpose.

------
lordnacho
What little experience I have with patents tends to push me to agree. It's a
net negative for society.

\- I got a software patent once, on a blockchain related idea. Why did I
patent it? Because my partners thought that if we didn't, we'd be in a bad
position if things took off. So then we had to spend time and money
researching what lawyer to get, explaining to them what the invention was, and
so on. Time that could be better spent building a product. And to be honest,
the idea was trivial to anyone who knows how to code. But that leads me to
another point...

\- The fact that things can be patented leads to a culture of ideas being some
sort of resource, like gold or oil. They're not. And we shouldn't deify people
who have good ideas. Ideas are simply a natural consequence of exposure to an
environment. Literally every idea ever has been "let's take X and Y, and use
it for Z". Stick someone in the world, and they will have ideas. Sometimes two
people will have very similar ideas.

\- A friend of mine is an inventor. Of the old school, the kind of guy who has
a 3D printer because his inventions are objects rather than software. Like any
tech guy, he gets ideas. Every time he gets one, he has to spend time looking
for an existing patent. He's canned several projects because something turned
up. For instance my wife started doing some research in the medical field
because he'd come up with some device, and it basically ended up getting
canned because someone in China had done something similar. He's spent
significant time training himself in how to do a patent search, which is not a
trivial thing to do.

The market should just be free. You invent a better mousetrap? Why shouldn't I
make it and sell it? Maybe I can sell it more cheaply. Or I can make one that
fits the needs of the consumer of some segment better. Why should I be
stopped?

And what about the argument that it incentivises research? I don't know what
the state of the evidence for this claim is, but I would think that just about
any interesting line of research will be known to more than one group of
researchers.

For instance, DNA was being looked at by several groups before Watson and
Crick published. In science space, it's somewhat ok, maybe it's bad that one
group gets a lot more credit than those who went down a different line, but
those other guys can still publish papers with valuable information.

But if you're researching a cure for cancer (imagine it's just a certain
unobtainium complex), and someone else finds it first, you are screwed. In
fact, if you know that many people are making progress on a problem, you have
a powerful disincentive to work on it. In fact, you could even have an
equilibrium where a line of research is not pursued because someone else might
get ahead.

The econ 101 idea that people will invent stuff on the basis that their
investment will be protected is naive. They may never get to the point where
they're protected.

Aside from that, look at fields where intellectual property is not protected
from copycats. Imagine if you could only buy suits from one brand. Or if
baseball caps only had one logo. And so on. There's plenty of fields where me-
too marketing is beneficial to society.

~~~
cloudjacker
This is comical because you made a rant about the proper use case of patents.

Disclosing an idea so people actually learn from it instead of redundant
effort. In exchange they get a monopoly on the idea. Your friend was probably
all "hey don't tell anybody about my super unique idea until they sign this
NDA, I don't want them to steal it. Of course I haven't talked to anybody
about the idea or gotten outside input and therefore have no clue if it exists
already"

Your friend canned the idea because they were greedy, because they wanted
first mover advantage. From your story they didn't even try to contact the
patent holder to leverage resources, mind share, and God forbid, a licensing
fee!

Don't conflate the problems with the patent system with the actual use case if
the patent system.

~~~
TeMPOraL
You have some good points but personal attacks at GP's friends were uncalled
for.

~~~
cloudjacker
It wasn't an attack. I don't consider misunderstanding when to have trade
secrets vs outside input, or greed, to be negative traits.

