I'm deeply saddened by this mess and doubt it will ever be resolved. There is far to much money at stake now to revert things - money = lobbying.
> [...] they accidentally infringe on a patent
Patents in the software industry were historically held for defensive purposes. If you get large enough you start building a patent portfolio so other companies can't sue you because you'll sue them back. Everybody infringes on everybody else's absurd patents so suing is a Mutually Assured Destruction scenario (neither party wins and the lawyers take all the money that you could have invested in something worthwhile).
Companies like Lodsys and Intellectual Ventures are different. They only have patents and they have no product. So if they sue you for patent infringement you can't sue back even if you have patents because they don't have a product and by definition can't infringe on your patents (if you have them).
Patent fights between corporations are ugly enough, but are generally on a more-or-less level playing field. They happen in the courts between very well funded armies of lawyers.
Suits between, say, Lodsys (money + patents + lawyers + no product) and independent developers (no money + no patents + no lawyers + product) are so vastly uneven and unfair that most developers will just give up before this ever comes before a court. Even if you want to do it on principle it'll bankrupt your life. Just giving up and finding safer markets with (maybe) lower profit margins seems like the obvious way to go for anybody.
A couple of years ago a company called i4i got an injunction issued prohibiting the sale of Microsoft Office for (frivolous) patent infringement. Of course, Microsoft panicked and worked around the patent immediately, released a patch, and sent out new packages to suppliers -- expensive indeed but at least they avoided actually not being able to sell Office at all. If we have this kind of thing happen to multiple big companies even a few times a year I think we'll be on track to some serious patent reform. Until then, it's just too profitable to pillage the little guy and engage in mutual cross-licensing and suit settlements among competitors than it is to care that it is impossible to write software without violating hundreds of patents.
We know the saying: "the best way to get rid of a bad law is to enforce it". I've heard it attributed to Teddy Roosevelt but can't seem to find a good reference atm.
That's pretty much what happened to Microsoft. It got sued and creamed repeatedly in the late 1990s and early aughts. Myrvold's venture is a very obvious outcome. Earlier foreshadowings included Microsoft's pressuring Wang to sue Netscape:
(One of many reasons those with long memories have little trust or love of the former Redmond giant).
(Edit: fixed italics on quoted text.)
I do understand where you are coming form; I'd like to add my $0.2: The best way to fix patents is to get a better funded patent office so that they can process patents faster, updating laws and basically following the due process required to update the current system.
Accepting that things will change only if large corporate interests are hurt, is to be ruled by a broken, unjust and unfair system, one which will never value be 'fair' only to those with enough money to buy their way to power.
Every employee handbook I've seen that has mention of patents has said ``thou shalt not go patent surfing, and if you do, only ever talk to your patent attorney. Oh, but do file lots of patent applications!''
Think (evilly): Myrhvold's IV Labs or Apple or Microsoft or IBM offers a "Friends of IV/Apple/MSFT/IBM" program where for $495 annually (like a Apple Developer Connection subscription) you're guaranteed protection, get a t-shirt, give up some PR, etc.
Having the free guilds be sworn to some liege for protection while providing useful arts is hardly a new concept.
he refers to himself as Christoper Charles Crawford. QED.
For example, we could apply machine learning / data mining to categorise patents so that we can say patent N, M and L are 95% equivalent in some well defined sense.
ie. we could fight back with firm data which ridicules the Patent system into revamp or obsolescence.
One of the problems with patent enforcement: the patent holder has the right, but not the obligation, to pursue infringement. Or in plain English: they can pick their fights.
If IBM, Mac's Komputer Shoppe, and Western States Services, Inc. all infringe, odds are good that the PatTrollCo will skip IBM (able to defend) and Mac (no assets) but nail WSS (big enough to have assets, not big enough to have attorneys on retainer or a significant patent portfolio).
A string of these small victories makes it much easier for them to shake down the big targets later... So while you PROBABLY won't be the target of a lawsuit unless you're very successful, there's a bit of a lottery that happens pretty often with these cases where some small percent of small targets do get run over by the patent holders on the road to the bigger guys. And if you happen to draw the short straw on that, it sucks to be you.
[1. Possibly cursory layperson check of existing patents ]
2. Weekend / hobby / small-scale project
3. Oh! People like it, it's making money / scaling!
4. Get lawyer in to do proper patent search before continuing?
(not that this is ideal either)
It's the court costs that can pretty much bankrupt you.
I also think there should be oversight on the patents that are granted. Right now you can patent something that has 20 years of prior art with relative ease. That's silly.
There were also reforms in the 1990s which extended the life of a patent (from 17 years to 20), but started the clock at filing time, not grant. This was due to a slew of patents issued to Jerome Lemelson which he kept appealing to the patent office. These were eventually granted, a practice termed "submarine patents". Lemelson (and his heirs) were awarded over $1.3 billion in royalties (he's also got a wing of the Smithsonian named after him).
But the system's still pretty messed up.
If you come up with something worth patenting, you get a year lead on competitors. That's it.
AND, the patent office needs to start DOING THEIR JOB and stop granting patents for obvious inventions.
There are a host of arguments as to why it can't happen, of course.
For the first: the idea of a patent is to grant a monopoly. That should be on a "use it or lose it" basis -- if you're not selling a product (or taking demonstrable efforts to do so) within some t time of having submitted (or been awarded) a patent grant, you lose the exclusive use right. Afterward, you can get some mechanical royalty, perhaps. That still raises issues in the place of software where there are potentially _thousands_ of infringements in a single product. And moreso for free software: is the mechanical royalty some percentage of purchase price (a competitor could sink your market by dumping), is it a fixed per-unit fee (and how is that determined, assessed, and collected)?
Confounding that is the point mentioned in the story: the value of patents is their aggregated use. It's like the Lilliputians tying down Gulliver. Each thread on its own is tiny, but enough of them are sufficient to be immobilizing.
The real problem is that the patent office can literally create property rights out of thin air / whole cloth. The mandate of several recent directors of the US Patent Office has been to "increase production" -- to grant more patents. If the NPR story is accurate (and reading patents is an obscure art, which itself may invalidate the directive of "obvious to one of ordinary skill in the art") and Crawford's '5771354 patent was one of 5000 identical inventions issued at the time, then the patent office very simply isn't doing what it's supposed to do.
The problem (wait, have I used that tuple before in this response) is that there's no one party authorized and/or able to bring about that reform. I've watched the spectre of software patents emerge and grow over the industry for nearly two decades. Richard Stallman's been railing against this since the early 1990s (the man is seriously prescient). Numerous tech companies, including Red Hat and Oracle, are or were part of an anti-patent league. For a time, Microsoft fared very poorly in patent fights (it had a small portfolio of its ownn, hence, a weak defensive position). It's hardly surprising that Myrvold spun out and started IV. So we're kind of stuck. Unless Congress can get convinced to take action.
I'd love to see that. I'm not hopeful.
Software patents aren't the problem, bad software patents are the problem.
It is not realistic to expect anyone to judge novelty and non-obviousness in a field this wide and active. Imagine trying to evaluate mechanical engineering patent applications if millions of people carried machine shops around in their backpacks.
The only solution is to end software patents. Obama could do this today by directing the patent office to respect the Supreme Court's Flook decision, which they reiterated as good precedent in Diehr and in Bilski.
Imagine if there were a public review step to granting patents, where the broader community could provide examples of prior art and debate the non-obviousness of it.
Something like mouse gestures feel like a patentable innovation worthy of a temporary government-enforced monopoly.
In the 1980s (IIRC) this has previously resulted in long delays before patents were issued, but then Congress ordered to USPTO to clear its backlog, which means they now _have_ to grant most patents quickly, because if they don't the applicant will just make a few small changes and send the patent in again, but if they grant the patent its out of their hair.
15 years in technology is a lifetime. Enforcing a monopoly for so long ensures that there will be no real innovation/progress in that area. How can we, as a society, afford to be held back like this?
In so many areas progress would happen much faster if not hindered by legal threat.
I've been thinking about workarounds. Could a "I confirm that I'm from Malaysia" button do the trick?
In other words, if three companies down the block signed millions away to Intellectual Ventures, you would have no idea. Maybe the risk is overblown. Unfortunately we have no idea of knowing.
They try to hammer this point home in the podcast.
It occurred to me there is simple legislation that might chip away at all this shadiness: Pass a law that forbids NDAs in patent licensing deals.
If it did work it would be the greatest conspiracy ever pulled off. A company extracting a billion hostile dollars and people not even posting on anonymous sites? So not likely.
The genius of IV's NDAs isn't that they have millions of companies paying them, but that they can create the mythology that they might. And you might be next.
I'm literally about 100x more worried that my architect gets hit by a bus than I am of being sued over patents.
I'm not saying that lawsuits don't happen, but they're rare.
The odds are already pretty long for being a successful dev, but if these letters take out 10, 15, or 20% of the would-be successful ones, that's a big deal.
The reason google, facebook, etc... would rather buy startups that are breaking new ground is because it's faster and cheaper than just copying/cloning an idea and building it from scratch - especially these days, when innovation happens much quicker.
The only way for me to "manage" some sort of patent lawsuit would be buying insurance against it (is that even possible?), and even then the insurance company would likely settle, handing over more cash, and further validating the business model.
Pretty sure a standard household toaster is well into that range.
They like to say things like "ideas have value" and that they are "disruptive."
Are there examples where the patents they own and monetize actually represent valuable "ideas" and not after the fact claims of invention? I'm guessing not, but open to being proven wrong.
And who, or what, do they think they are disrupting? Isn't IV the incarnation of the status quo?
Reading their website feels like reading a politicians...
Man if ever I wanted to believe in Hell, these guys are the ones to inspire me.
The Planet Money reporters asked this very question. IV offered bupkis in response, rather sending them on a wild goose chase. I only hope Mhyrvold starts patenting culinary ideas, just to spread the joy.
I know of a rather serious source that says patents are a net evil, baked up by… centuries of evidence: http://www.dklevine.com/general/intellectual/against.htm
About the values of ideas, it is quite evident that most patents' ideas are extremely valuable. The more obvious the idea, the more valuable it is. The artificial scarcity created by the patent system merely shows how valuables simple ideas actually are. Imagine for instance that breathable air becomes scarce. How much would you be willing to pay for it if it meant your life?
http://en.wikipedia.org/wiki/Patent#History -> "Patents in the modern sense originated in 1474"
And of course, the Watt's steam engines patents: http://en.wikipedia.org/wiki/James_Watt#Patents
Also, they made a general statement, which we could have dismissed thus: "OK, the patent system is a net good. But _software_ patents are definitely bad [a few decades of overwhelming evidence]". This is generally what we see here an HN.
However, I think we can attack their statements more directly, as "Against Intellectual Monopoly" did. I also think we should do so, instead of just defending our corner of the industry. My current position is, the concept of patent is broken at its core. It simply doesn't work, never did, never will. Hey, I even heard that the first patent systems actually were disguised trade barriers, meant to protect the established, local industry. At that, they did work.
Instead they are creating a false dichotomy of "patents can be good for inventors, so we can't be doing anything wrong"
Yes, shocked, shocked ....
They've actually been trying for some time now.
Michael Jackson attempted to patent some of his dance moves.
There's been discussion of patenting specific sports plays.
There are also discussions and stories looking at fields which work well without (or by ignoring) IP protections: comedians, fashion designers, jazz musicians. Even this bunch of hippie freaks doing something they call "free software", but I don't think that will ever amount to anything.
At least in the technology companies ive worked for, the strategic value of patents comes purely from the fact that having them can keep frivolous lawsuits at bay.
Absolutely. While listening to it, one of my thoughts was "I can't wait to read the discussion of this over on HN".
I'm going to use this opportunity to remind people to donate to their local public radio station, TAL/WBEZ Chicago, or both.
Boldrin on Intellectual Property
Blakley on Fashion and Intellectual Property
pg groupies may also want to check out the Econtalk interview with Paul Graham. Finding it is left as an excercise for the reader, primarily to encourage people to check out this amazing resource.
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.
First, it is not written that the congress has to exercise that power.
Second, what if Y does not promote X? What if it hinders X? It is written that the congress is allowed to promote X (through Y), not doing nothing about X (through Y) and certainly not hinder X (through Y).
I understand how one might assume that a patent system is a good (best? only?) way to promote the Progress of Science and useful Arts, especially back then. Nevertheless, I think this was a mistake: they wrote the mean in the same stone they did the goal. (Of course, goals themselves can turn out to be means to higher purposes, but in this case it is quite obvious from the beginning.)
But, I'm Canadian. Your comment makes me feel a bit safer, but I have the feeling that little things like hosting the site in the US or collecting money from Google AdSense or an Amazon Affiliates account could make me horribly liable.
I know that rationally this practically a non-issue, since I'm such a low value target, but the fear is still there, lurking beneath the surface, scaring the hell out of me.
1st idea, the collection, aggregation, and transmittal of electronic messaging data during a waste evacuation process. (i.e. checking your email while on the toilet)
Correction: this was before he was sent (banished, the article makes it seem) to Microsoft Research.
Just looking for a general idea here, I'm not looking for official legal advice here... :-)
Heh. Programmers' malpractice insurance. The premiums would be ridiculous, though.
>Or perhaps some kind of co-operative that owned a bunch of bullshit patents to be used for defensive purposes in such a scenario?
That's more or less the shitck Intellectual Ventures uses to justify that they're not patent trolls (they point it out in TFA). In the podcast they point out that their need for a good ROI doesn't allow them to sit idle.
How do you defend against patent trolls, though? It's not like they make anything that can be infringed on.
Maybe here's a valid, easy-to-swallow change to the patent system - everytime a patent changes hands you halve the amount of time it is valid for.
> It's not like they make anything that can be infringed on.
Or, require the patent holder to prove 'damages'. Since they don't make anything and don't actually use their patents there are no damages lost.
No, you're not simply a 'market'. A market doesn't come and sue you for buying your milk somewhere else.
I wasn't using 'patent troll' or any of the other terminology. I was pointing out a flaw in this guy's reasoning. Yes, I had only read 500 words into a 4000 word article. I'm now about halfway through and have scanned the rest of the article... and I don't see anything that invalidates my claim above. IV is not the 'market' that it says it is. If anything, I am supporting what npr is saying.
HN moderation is weird.
I've seen this elsewhere - if someone says they're being sarcastic, they're downmodded to hell... but people in the same thread saying the same thing in the same sarcastic manner, but without the admission, are left alone.
I find this inconsistency annoying - it appears that downmod-friendly HNers are more interested in making a pretense to politeness than actually moderating content. It only takes a single dissenter and your words are already diminished on the page.