

Ask HN: Cases where software patents have prevented progress? - pg

A student writing a thesis about software patents emailed me asking about cases "in which having a patent on an algorithm prevented some significant technological progress."  HN seemed the best place to find answers.  What are the clearest examples of this happening, and how much did they slow things down?
======
petewarden
I have a couple of examples from my personal experience, neither earth-
shattering, but when you consider X million engineers running into similar
issues, the cumulative tax on innovation is pretty large.

Working on F1 '98, we had to scrap a whole training mode where you'd see your
time compared to previous laps because lawyers were concerned it overlapped
with the Atari 'ghost car' patent:

<http://kotaku.com/270035/patents-are-interesting-ghost-mode>

We spent a lot of time and energy trying to work around this, we weren't
showing any kind of ghost car, just a time indication, but apparently the
patent was broad enough to cover any kind of comparison.

The second was a patent on controlling any kind of video effect based on a
sound input(!). This severely constrained what we could do on a major video-
processing package, forcing us to avoid some features. They tried to extort
independent developers out of a lot of cash, despite being a painfully obvious
idea that had been around for decades before the patent was filed:

<http://www.trapcode.com/US_SK_advisory.html>

------
ivankirigin
Xerox Parc has a patent on a type of filter viewer that acts like a looking
glass to see the effect of the filter. Every year, someone reinvents it and
presents it at some HCI conference, only to be told they can't use it. They
are sitting on it, not building it, and also enforcing it.

SIFT is a vision technique that is patented and works very well. Patents are
getting in the way of commercial progress [http://en.wikipedia.org/wiki/Scale-
invariant_feature_transfo...](http://en.wikipedia.org/wiki/Scale-
invariant_feature_transform)

Amazon Onc-Click is an absurd patent. If we grew to scale, Tipjoy would
probably have had to pay them money, like Apple does.

~~~
mattmaroon
Does Amazon actually enforce that? My understanding (perhaps incorrect) was
that they quit after the hubbub when they tried it on Barnes and Noble. Also,
isn't Bezos notoriously opposed to software patents?

~~~
Create
Beso et al. are bullies. btw:

<http://webshop.ffii.org/>

"Reback often tells the story of how a team of IBM patent lawyers went to Sun
Microsystems Inc. in the 1980s and claimed that the then start-up was
infringing on seven of its patents. After Sun engineers explained why they
were not infringing, the IBM lawyers responded that with 10,000 patents, they
would be sure to find some infringement somewhere." The Washington Post

"One could be tempted to consider ever stricter IP protection regimes to
provide ever more stimuli for innovation. This conclusion is wrong, however. A
prime example is patents on software, which might at first sight be seen as a
logical expansion of the classic technology patent. But creating software
differs markedly from creating machinery and the like." Deutsche Bank Research

"If people had understood how patents would be granted when most of today's
ideas were invented and had taken out patents, the industry would be at a
complete standstill today." Bill Gates (1991)

"The world's patent systems need reform so that innovation can be properly
rewarded. (...) It is becoming ever more apparent that the patent system isn't
working." The Economist (11 November 2004)

"Building up a patent portfolio by engaging in defensive patenting cannot
always protect against hold-up." Federal Trade Commission of the USA

"More patents in more industries and with greater breadth are not always the
best ways to maximize consumer welfare." Federal Trade Commission of the USA

"The mild regime of IP protection in the past has led to a very innovative and
competitive software industry with low entry barriers. A software patent,
which serves to protect inventions of a non-technical nature, could kill the
high innovation rate." PriceWaterhouseCoopers

"SMEs are crucial providers of pathbreaking innovations, but would be most
adversely affected by patentability. The majority of them is deterred by the
costs of patenting themselves, but would have to navigate around software
patent portfolios of large corporations." Deutsche Bank Research

"Many large companies operating on a global scale, including European ones,
seem to be in favour of a software patenting regime. But most small
enterprises are strongly opposed." PriceWaterhouseCoopers

Microsoft Corp. warned Asian governments on Thursday they could face patent
lawsuits for using the Linux operating system instead of its Windows software.
Reuters (18 November 2004)

"A future start-up with no patents of its own will be forced to pay whatever
price the giants choose to impose. That price might be high: Established
companies have an interest in excluding future competitors." Bill Gates (1991)

"Patent law provides to inventors an exclusive right to new technology in
return for publication of the technology. This is not appropriate for
industries such as software development in which innovations occur rapidly,
can be made without a substantial capital investment, and tend to be creative
combinations of previously-known techniques." Oracle Corporation Patent Policy

~~~
mattmaroon
Wow was that off topic.

Guy A: "Doesn't Amazon get software patents mainly to protect themselves
rather than enforce them?"

Guy B: "Here's a long, extensive list of actions by other companies proving
that software patents are evil!"

Sometimes I think people need to drink less Kool-Aid.

~~~
Create
Read B again, and recognize that there is no such thing as a software patent
"mainly to protect themselves". Consider the patent portfolio effect right
from the first, wsj quote.

~~~
mattmaroon
That you can find examples of people abusing patents is not proof that all
patents exist to be abused.

~~~
gridspy
It is hard to tell either way until the engineers in a startup have created
the "infringing" technology and it is well established in the marketplace.

------
pmichaud
One thing that's difficult to measure but probably not trivial is the overall
cooling effect. What I mean is that the tangible cases in which patents really
ran into conflict don't indicate the number of cases in which technologies
were never researched to begin with because of the risk of infringing a
patent.

The cooling effect probably isn't significant for the mythical basement hacker
who does it for love, but decisions about what research to pursue are made all
the time in larger companies, and one of the factors is potential for legal
trouble.

~~~
DanielStraight
This is an excellent point. Basically the patent minefield concept. The
insanity of software patents has created an overall sense of fear. There is no
way to quantify this aspect of patents' negative effect on progress.

------
fragmede
Microsoft's long filename in FAT filesystem patent was recently threatened
against TomTom (<http://lwn.net/Articles/320737/>).

Instead of working on new features (whatever they may have been), TomTom must
instead commit resources to working around the patent.

~~~
jacquesm
Excellent example.

Many camera manufacturers faced similar obstacles, and ended up fragmenting
the market with proprietary formats or paying the 'microsoft tax'.

------
mrshoe
I would point to the current HTML5 video element debacle:

[http://lists.whatwg.org/htdig.cgi/whatwg-
whatwg.org/2009-Jun...](http://lists.whatwg.org/htdig.cgi/whatwg-
whatwg.org/2009-June/020620.html)

Patents are playing a large role in ensuring that what could be a wonderful
thing for the web will almost certainly not be.

~~~
fragmede
I'd say that HTML5 is the tip of that particular iceberg.

I mean, what was HTML 5 supposed to change? The fact that video (and audio) is
broken on the web, leaving to flash as the closed de-facto standard. The whole
situation that HTML5 was supposed to fix is, itself, a result of codec
licensing/patent issues.

I'd venture that without those issues, the <object> and <embed> tags would
have had a bigger impact.

~~~
GHFigs
_I mean, what was HTML 5 supposed to change?_

Nothing. It was supposed to be, and is, a description of what browsers
actually implement in common, just like every other HTML spec before it.

------
aristus
Singular Value Decomposition was held back for 20 years by patents owned by
BellCore. I had to scrap large interesting portions of Dowser to avoid
potential problems.

As a counterexample, Autonomy has a patent on Bayesian text classification
dating from the late 90's. I've always wondered why they didn't say anything
after Paul popularized it for spam filtering.

------
yuvi
Elliptic curve cryptography and LDPC codes are two that come to mind.

Though afaik the latter hasn't really been improved since ~1960 and were only
patented after rediscovering them in 1993, and I have no clue whether progress
in elliptic curve cryptography stalled due to patents or because they don't
offer any practical benefits over RSA.

------
jacquesm
The GIF patent is the first one that comes to mind.

A more recent one is Acacias patent on video transmission via networks and
this gem: [http://arstechnica.com/tech-policy/news/2007/04/acacia-
claim...](http://arstechnica.com/tech-policy/news/2007/04/acacia-claims-
patent-on-cd-hyperlinks-sues-for-billions.ars)

Are there cases where software patents can be proven to have fostered
innovation?

~~~
ryandvm
Except moving to PNG _was_ progress...

~~~
jacquesm
It could have been a backwards compatible extension to GIF instead.

More formats = fragmentation = consumer confusion and problems.

Progress is not a single variable either, there are plenty of ways that you
can define progress that are more or less orthogonal to each other.

Forward, sideways and 'up' are all movements that you can interpret as
'progress' depending on where you are and where you want to be.

From that point of view PNG was sideways and 'around' rather than forward.

Any kind of dataformat, any kind of protocol, anything that is not a
completely closed box that performs a function (an 'appliance') should be as
open as possible.

And that should be enshrined in law, interfaces and formats are automatically
in the public domain, and have to be documented.

PNG as a GIF replacement is superior, for most applications. But if you think
in terms of browser support then you could interpret it as a step back during
the introduction phase as well.

~~~
Quarrelsome
I'll back this up. Been banging my head against a brick wall because WindowsCE
doesn't load .pngs properly..... sometimes (it's one of _those_).

Convert to .jpg and everything is fine.

~~~
eru
Yes, but .jpg is not always what you want. The artifacts can look ugly on
schematic drawings.

------
jfarmer
Blackboard's patents come to mind.

~~~
arfrank
They ended up losing a lot of those claims recently if I recall correctly, but
that being said I agree for a long time it did and still does hurt the LMS
environment.

[http://mfeldstein.com/all-44-blackboard-patent-claims-
invali...](http://mfeldstein.com/all-44-blackboard-patent-claims-invalidated-
by-uspto/) (2008)

------
smokinn
I still don't know what the issue with supporting multi-touch devices in North
America is but I strongly suspect it's because of software patents. Anytime a
corporate rep is asked why their device doesn't support it they hem and haw
and say that it's complicated but never give a real answer.

------
btilly
There is a ton of really interesting and cool stuff that was done in wavelet
research years ago which got patented and hasn't really seen the light of day
in the way it should.

If the patents hadn't existed I'm sure we'd now have much better widely
available voice recognition, image recognition, and related data processing
software than we do now.

------
tmitchell
During development of Doom 3, id Software fell into a bit of a patent conflict
with Creative. Relevant snippet from <http://en.wikipedia.org/wiki/Doom_3>:

"A week before the game's release, it became known that an agreement to
include EAX audio technology in Doom 3 reached by id Software and Creative
Labs was heavily influenced by a software patent owned by the latter company.
The patent dealt with a technique for rendering shadows called Carmack's
Reverse, which was developed independently by both John Carmack and
programmers at Creative Labs. id Software would have placed themselves under
legal liability for using the technique in the finished game, so to defuse the
issue, id Software agreed to license Creative Labs sound technologies in
exchange for indemnification against lawsuits."

I remember something about Carmack coming up with a workaround that paid a
performance penalty so others licensing their engine could bypass the Creative
mess.

Creative has also taken quite a bit of heat over the years for sitting on
Aureal's IP and stifling innovation in sound technology, but I don't have
specific examples to cite.

------
dstorrs
I worked at a company called Pica9, generating PDFs on the fly. Another
company has the patent on that, so we had to spend a considerable amount of
effort working around it, making sub-optimal choices at easy decision point in
order to make it legal.

------
jchonphoenix
The most obvious one that comes to mind is LZW, which basically killed the
entire compression scheme.

------
dpcan
This question is circular.

The potential "technological progress" doesn't exist because it was thwarted
by software patents, so there really is no way of knowing what doesn't exist
because it couldn't be created to begin with.

So, are you asking us what things don't exist?

~~~
pg
No; the question asks what things _would have existed._ This is a concept
people use all the time in everyday life without provoking ontological crises.
E.g. if you say "he would have scored a touchdown if that last defender hadn't
tackled him," everyone knows exactly what you mean. You can never be 100%
certain about things that would have happened, so you qualify your
conclusions, but it's not the case that you can't reasonably talk about such
things.

I can't believe I just had to write that. This is why forums are such a time
sink. If you were watching a football game with your friends and someone said
"he would have scored if that guy hadn't tackled him" and you replied "how can
you talk about touchdowns that don't exist?" everyone else would just roll
their eyes and not invite you over anymore. But here in the world of text
these subtly graduated social cues don't exist; all you can do is reply with
more text. I wonder if there is some kind of solution to that.

~~~
RyanMcGreal
> This is a concept people use all the time in everyday life without provoking
> ontological crises.

+1 for common sense; however:

> This is why forums are such a time sink.

I doubt that you can realize the benefits of an open forum without paying what
we might call the _free speech tax_ \- the inevitable disruptions of pedantry
and/or trolling, which under the right circumstances are insightful and even
revelatory.

~~~
projectileboy
Sadly, you're probably right. What's depressing is that HN wasn't like that
for a very long time (2 or 3 years, maybe?), but it seems to be descending
into a Reddit-like cesspool of crazy very rapidly.

Having said that, this is still by far the best non-trivial online community
that I know of.

EDIT: Wow... downvoted in 4 minutes, for a mostly harmless comment. I guess
we've become closer to Reddit than I thought. I normally hate elitist groups,
but there's a part of me that would like to see every account newer than, say,
200 days just get nuked. <sigh>... I really loved this site.

~~~
RyanMcGreal
Please note that I'm not saying HN is turning into reddit - I don't believe my
score is high enough for me to be allowed to make that claim. (I do believe HN
would benefit from a measure of reddit-style levity: right now it's all
Serious Business, all the time.)

What I'm saying is that real constructive critical debate _requires_ strong-
willed, pedantic, even curmudgeonly debaters. The marketplace of ideas doesn't
work without the push and pull of challenges, refutations and even meta-
refutations ('You're asking the wrong question').

If Paul Graham wants good answers to his question, the price he has to pay is
an allotment of bad answers - answers that are revealed as such on the
marketplace of ideas. You can't get the good stuff without also allowing the
bad stuff (and having reasonable filters to distinguish them).

P.S. Not sure why I was downvoted for my comment above.

------
te_platt
By progress do you mean creation of new technology or making technology
available? A case I followed (involving infringement on a fingerprint
recognition patent) shows how even weak patents slow the development process.

Summary - Small company receives patent, sues large companies for
infringement, two years and more than a million dollars later patent is
invalidated, technology moves on. All the gory details here:

[http://www.legalmetric.com/cases/patent/utd/utd_206cv00115.h...](http://www.legalmetric.com/cases/patent/utd/utd_206cv00115.html)

------
aidenn0
It's been speculated that Apple dropped ZFS due to patent concerns.

~~~
wmf
Yeah, the NetApp-Sun ZFS lawsuit is like a big "patent minefield here" sign.

------
bioweek
Were there patents on compression algorithms? Are there any weird things Linux
has to do to work around patents?

~~~
jws
In general, anywhere you find Huffman coding being done, it could achieve
superior compression with Arithmetic Coding but is not because of IBM's
patents.

This is essentially every JPEG image on the planet. The standard provides for
arithmetic coding, but no one implements it because of the patent. Wikipedia
asserts that arithmetic coding saves about 5% of the files size.

So that is 5% of every flash card sold for a camera wasted and 5% of the
bandwidth costs for images on the internet wasted.

If GATT hadn't tacked on three more years in 1995 these would have expired by
now, but it looks like 2012 or 2013 is the date now.

The MPEG series of standards probably could also have benefited similarly from
Arithmetic Coding.

~~~
eru
And isn't MPEG (or at least mp3) covered in patents, too?

~~~
jws
There are about 1000 patents covering MPEG. Just the MPEG2 list runs 36 pages.

But maybe YouTube could be saving 5% of their bandwidth bills if arithmetic
coding weren't patented.

~~~
eru
Or at least if the patents weren't enforced.

------
10ren
Not an example, but there are many cases of people "working around" a patent.
In this case, it is a _spur_ to technological progress. That is, preventing
progress can encourage progress.

There's a "prospect" theory for patenting (which with this student is probably
familiar), that a patent is like staking a claim to minerals, with a samilar
effect: that it encourages others to stake claims nearby, and so explore that
region. If others could use the same area as the patent, they wouldn't be
encouraged to explore, and you'd get a technological monoculture (in another
sense, this would be greater _progress_ , in that it is more widely adopted).

I've been trying to think of an example, but I can't. I think the main way a
patent can block progress is if the technology is not exploited well by the
owner (like smalltalk being too expensive), and in such cases, we don't hear
of it. When a patented technology is exploited successfully, money and time is
reinvested in developing it, so that progress on it is accelerated.

~~~
eru
However --- imagine that the claims on minerals would be hard to see [1], and
accidental violation would put you at great legal risk. Then people might get
discouraged from staking claims in that general region.

[1] It's not easy to look through all the patents before building anything ---
and may even be harmful to your legal position.

------
petercooper
Apple's patents on sub-pixel text anti-aliasing. The text in both Windows and
Linux looks hideous by comparison. You can enable these features in certain
situations on Linux with extra packages, though.

 _Correctional update: Microsoft holds patents in this area but Apple has a
cross-licensing agreement on them._

~~~
vetinari
Apple has patents on truetype hinting, not subpixel anti-aliasing. Ironically,
when working around this patent, it is easier to get results similar the OSX,
rather than similar to Windows.

~~~
blasdel
The patent covers the bytecode interpreter that reads the hinting instructions
in the truetype file, not the hinting itself.

------
darrylArguss
it's hard to find any examples where patents have stiffled innovation. Of all
the hundreds or millions of patents it's only possible to find very few if any
historical examples where patents stifle innovation.

What patents do achieve is exactly what they are there for. which is to
protect the inventor of something usefull for a period of time.

If you want to use innovation that has patent protection, you should reward
the person who invented it, OR invent something better youreself.

That applices to things like Ogg Thorbis, where new technologies were
developed in spite of patents. If there were not patents on MPEG Ogg would not
have been innovated.

Same with file systems, if there were no patentson NTFS or FAT, then why would
ext3 and so on mabey would not be where they are now.

Fact is patents are there for a reason, (apart from it being law). They appear
to work, and they dont appear to be affecting innovation to any degree.

Sure, there are groups who would be happy to ride the coat tails of others
innovations and inventions. But that is only so they are not able to innovate
themselves. They like something that works, and have a 'me too' attitude.

(why should someone else get rich, when I can copy that and get rich as well).

------
drallison
I would direct the student to the working Paper by James Besser and Eric
Maskin, Sequential Innovation, Patents, and Imitation, which builds an
economic argument against software patents. It and other relevant papers on
software patents are available at <http://www.researchoninnovation.org/>.

------
mattjung
<http://mises.org/story/3280>

~~~
ZeroGravitas
That was one I was going to mention, along with the Wright Brothers, before I
reread the question and realised it was only software patents they were
interested in. Still fascinating how people that I'd always heard venerated as
inventors could have spent so much time and energy holding other people back.

------
Daniel_Mietchen
<http://en.wikipedia.org/wiki/Marching_cubes#Patent_issues>

------
tsally
Not software patents, but SCO v. Novell is certainly relevant as an example of
commercial/legal forces hampering process.

------
BearOfNH
There certainly have been cases where alleged software patent violations
result in lawsuits. There the lawyers get rich while very senior engineers
cool their heels in court or give depositions in places unusual,
uncomfortable, and distant.

I don't know how measurable this is but it is patently obvious it is
preventing progress.

~~~
rgiar
Sorry, no time to do the legwork to see if this would work, but I wonder if
this "wastage" could be crudely measured by taking some aggregate number of
patent related lawsuits per year, multiplying by some factor to include those
settled out of court, multipy again by a conservative mean cost of a patent
action (attack, defense, commonwealth) == $wasted/year.

