
Why we need to abolish software patents - cwan
http://techcrunch.com/2010/08/07/why-we-need-to-abolish-software-patents/
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akeefer
One other thing to keep in mind in this debate is that it's expensive to
defend yourself from a patent lawsuit. For example, this blog
(<http://rpxcorp.com/blog/?p=129>), whose accuracy I have no idea of, claims
that the average total cost of a patent lawsuit where the potential damages
are under $25MM is $3.1MM to defend yourself, and $6.2MM if the potential
damages are over that number.

So there are several parts to this equation. 1) Creating any bit of software
involves thousands of "inventions," any one of which could be patentable. 2)
Patents are granted for things which fail the obviousness test, where the
chance of someone else independently "inventing" the same thing is essentially
100%. 3) The damages for violating even one patent tend to be astronomical and
totally out of line with the contribution of that "invention" to the software
in question. Out of 2 million lines of code, if one total BS patent covers 20
lines of that code, why are the damages likely to be basically equivalent to
most of the revenue for that product? 4) The cost of defending against a
patent lawsuit is enormous.

In other words: if you're a small software business, then there's pretty much
a 100% chance someone else can sue you for patent infringement if they want
to, losing the case will kill your company, and trying to defend yourself will
severely drain your resources and could kill your company anyway.

There's no part of that that helps or encourages innovation.

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Symmetry
I've had two runins with the patent system, and both have severely weakened my
trust in it.

Back in the day a student at my dorm in college decided tit would be a cool
idea to make a webserver for our laundry machines so that we could tell if
there was one free without going down to the basement. It attracted some
interest, and was even Slashdotted a couple of times over the years. Between
Slashdottings one and two a company applied for a patent on the idea of
connecting laundry machines to web servers. Much later, after our dorms
laundry server had been in operation for about a decade, they sent us a cease
and desist letter. We informed them that they'd lose their patent if they took
us to court and didn't suffer, but they are still charging people millions of
dollars for the system their invalid patent gives them a monopoly on.

After I got my Master's I started work at a consultancy that did custom
sensors. They had previously outsourced their engineering, but the company
that had been given the engineering work had tried to patent the ideas of the
consultancy out from under them. Luckily the consultancy had filed for patents
first, but the company was granted one of the patents anyways.

~~~
tkeller
Why didn't you send them a letter threatening to bring a declaratory judgment
action, then settle for a wad of cash?

~~~
joe_the_user
Who can say but starting a fight with any entity is dicey proposition. They
might have no cash or be adept of leaving in the dead of night. They might
turn out to have more lawyers than you and your costs would be huge.

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smeatish
Rather than abolish software patents, I'd like to see better precedents be
set. A software patent should be held to the same fundamental tests (non-
obvious, novel, unique) but the bar should be much higher for software because
the domain is so fast changing. Many software patents seem very obviously
superseded by prior art to anyone in the domain.

I would also love a fourth fundamental test to be added - cost of development.
The fundamental purpose of patents is to encourage innovation by allowing
investments in developing new technology to be recouped. Devising and
implementing a one click shopping system is not a substantial investment.

Unfortunately measuring the "cost" of development gets very complicated and
subjective very quickly - accounting for money spent on failed attempts, human
capital invested, opportunity cost, etc. Amazon could claim their whole
development team was trying to think of innovations and one click shopping was
the culmination of all of their efforts.

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prodigal_erik
This. If licensing your patent costs more than having each participant in the
industry independently recreate the invention, your patent served only as a
tax on the industry rather than a contribution.

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dpcan
How about a world with no patents at all and let's just see what happens.

~~~
gaius
Patents are broken in implementation, not as a concept.

~~~
nova
Maybe a non-broken implementation is not possible.

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gaius
It is if you can first solve the problem of getting people with domain
knowledge to work as patent clerks, or if there is a "peer review" process or
something.

The alternative to patents is not "all information wants to be free", it's
paranoid secrecy. If people are to invest in R&D, they need protection from
copycats. I mean, check this out:
<http://www.nytimes.com/2010/08/07/business/07muffin.html>

~~~
kiba
_The alternative to patents is not "all information wants to be free", it's
paranoid secrecy. If people are to invest in R &D, they need protection from
copycats. I mean, check this out:
<http://www.nytimes.com/2010/08/07/business/07muffin.html> _

The other alternative is that people get along with openness just fine.
Beside, people don't have an inherent right to a technological secret, at
least in the normal cases.

~~~
gaius
You are making the same economic mistake that a lot of anti-IP types do, which
is that you assume that the cost of duplicating a thing has any relation to
the cost of producing it in the first place. It does if you're talking about,
I dunno, spoons.

The point of patents is, if you discover a method of doing something, you
patent it, and if anyone wants to use your process, they pay you to license
it. So we provide a mechanism - but not the guarantee, since no-one might be
interested - for a return on an investment into R&D.

Do you really, honestly believe that a drug company would research a new drug,
spend a decade shepherding it through clinical trials and FDA approval (we are
talking an investment of hundreds of millions of dollars) and then a generic
manufacturer sells it for a little over the price of the raw materials, having
gotten all the hard work done for them for free?

Because even if they wanted to they couldn't; they'd be bankrupt.

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gnaritas
> The point of patents is, if you discover a method of doing something, you
> patent it, and if anyone wants to use your process, they pay you to license
> it. So we provide a mechanism - but not the guarantee, since no-one might be
> interested - for a return on an investment into R&D.

That is not the point of the patent system, that is the means by which the
actual goal is obtained. The goal of the patent system is make the information
public so all of mankind can benefit from it and the knowledge doesn't die
with the inventor. Buying off the inventor with a limited monopoly on the idea
is merely a means to an end.

~~~
gaius
_The goal of the patent system is make the information public so all of
mankind can benefit from it and the knowledge doesn't die with the inventor_

If you have a mechanism other than patents that makes it economically possible
for private organizations to engage in capital-intensive R&D _and_ make the
information public, let's hear it.

~~~
gnaritas
Where exactly did I imply that? I was merely pointing out the motivations of
the patent system. The system is not necessary for companies to be
economically viable as they've been doing that with trade secrets long before
patents were around. The patent system was meant to unlock those trade secrets
for the benefit of the public, it was never about the inventor's best
interests.

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ww520
Here's an anecdote. I am affected by software patent. One of the well known
optimization techniques in the product area that I'm working on has been
patented and bought by a big corporation. The situation is kind of murky since
there are similar techniques published by academics. That big corporation has
sued anyway and won large settlement from other companies.

For my product, I have to forgo implementing the technique. It defines a
feature not the product but it's a competitive advantage.

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atomical
The fact that companies have created software, patented it, and sued large
companies that use their technology gives me pause. Without software patents
the software industry will become like the consumer products industry where
inventors are ripped off by large corporations.

I think the VC's who are pushing this have an agenda.

~~~
ecaron
If this was what was happening in the majority of cases, I would agree. But it
isn't - big companies frequently buy patents just to go after and shut-
down/settle with smaller companies who are posing a threat. Like Apple against
HTC. Like Microsoft against Salesforce.com.

If there was a shorter life span, or stronger enforcement over patent
squatting, fewer people would be standing against it. But saying the VCs
pushing this have an agenda, without citing a single source, and thinking that
patents do anything now other than pay lawyers and slow innovation, is narrow-
minded.

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kenjackson
Let me be clear. You think Microsoft has sued more companies than smaller
companies have sued Microsoft? Wow, that's some serious revisionist history.
Just in the past two years MS has been sued by at least seven companies -- and
I don't recall any of them being trolls.

~~~
patrickaljord
MS doesn't need to sue, they just do intimidation and forces small companies
to pay them licenses, taxing all their competitors. I'll let you google the
glory details. Also, when MS sue a company for a patent on the FAT file
system, that's because they refused to pay them royalties/licenses unlike the
100 more companies they secretly threatened before them.

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Qz
I'm on board for abolishing software patents, but it would help if the author
understood what the (ostensible) purpose of the patent system was:

 _This effectively undermines the entire purpose of the patent system: the
patent office is charging applicants serious money for giving it the privilege
of giving away their commercial secrets._

Giving away commercial secrets is why the patent system exists! The fact that
software patents usually are too obscure to give away their secrets is part of
what makes software patenting so dysfunctional in the first place.

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benofsky
I have never really understood (or perhaps know where I stand) on the issue of
software patents, this article did not help.

"What is most alarming is that patent office automatically publishes
applications online after the 18 months ... This effectively undermines the
entire purpose of the patent system: the patent office is charging the
applicant serious money for giving it the privilege of giving away their
commercial secrets."

You know that going in (that you might not get a patent but that it will be
published), it's a risk, but the whole idea is that great ideas will be
released into the public domain with enough information to be implemented.

"They had the concept right, but they surely never conceived of Amazon.com
patenting clicks in an online shopping cart and methods for having an online
discussion"

This _is_ an issue but in my opinion an issue with the patent office granting
patents which through granting do not further innovation in the slightest
(rather than it being software). A counter to this example would be perhaps,
MapReduce [1].

[1] <http://en.wikipedia.org/wiki/MapReduce>.

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lwhi
I think that after a short amount of time (perhaps 10 years after being
registered) all patents should be released.

This period would allow the innovator time to bring their product to market
and begin profiting from their ideas. It would prevent patents being seen as a
way to unfairly limit competition. Innovation would be encouraged. It might
also reduce the desirability of patent-trading.

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alain94040
I wrote about limiting patents to 7 years:
[http://entrepreneur.venturebeat.com/2010/03/04/in-favor-
of-s...](http://entrepreneur.venturebeat.com/2010/03/04/in-favor-of-software-
patents/) (note that the title isn't mine, the title I had proposed was "the
7-year patent").

That's the best compromise I could come up with. I'm not interested in hearing
from people who have a 100% ideological position. I'm interested in finding a
solution, which implies a compromise from both sides. "Patents are evil" is
not a solution.

~~~
billswift
"In any compromise between good and evil, only evil benefits."

Which is why the government grows and grows and society gets more and more
disfunctional.

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Create
<http://www.nosoftwarepatents.com/>

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dctoedt
I don't get why there are so many down-mods to perfectly civil comments, as
evidenced by their zero-karma scores. I just upvoted all of them, for which I
will no doubt be downvoted by the same worthy who down-voted the others.

~~~
kragen
There are lots of perfectly civil comments that add nothing to whatever
discussion they are part of: stupid jokes, restating the obvious, complaining
about downvoting, and so on. People often downvote such comments in order that
others will be able to more easily find the comments worth reading.

~~~
dctoedt
None of the comments I upvoted were in any of those categories -- at least not
IMHO, and therein lies the problem, it usually comes down to a matter of
opinion.

As long as PG doesn't separately state upvotes and downvotes, a better answer
might be to reply to comments you don't love with "RTO" (restates the obvious)
or "ANTD" (adds nothing to discussion).

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zeynel1
i am for abolishing the patent system - it is archaic - the reason no one can
duplicate googles success is not the patents they hold but the infrastructure
they built -furthermore- competition actually helps to -increase- the market -
in new yorks fifth avenue there are hundreds of luxury brands - doing business
next to each other - and thriving - if your competition copied you - you copy
their improvements to improve your product - copyright is an impediment that
serves no body ----except the government bureaucracy---- who enforces the
copyright --laws--

~~~
kjrose
I think having shorter times for copyright and patent to expire would be
effective. With the speed and turnaround of the current markets, patent law
ends up stifling innovation and in general harming the economy as a whole.

This is a prime reason countries which are lax in enforcing copyright law as
rising economically in the world.

