Judge Posner admits he is no expert on what the fixes should be and his tentative suggestions for fixing the system are, in my view, decidedly mixed on their merits (e.g., specialized adjudications before the USPTO - remember when it was suggested that a specialized appeals court would improve the patent system and the result was a court that has been so maximalist in its approach to patents that it has in itself become a significant part of the problem).
So where to begin?
Legally, it has to go back to fundamentals and, for me, this has to go back to the scope of patentable subject matter and whether this should be defined to include software at all.
The Patent (and Copyright) Clause of the Constitution (Article I, sec. 8, cl. 8) provides that the Congress shall have the 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." Note that, in defining this as one of the enumerated powers of the federal legislative branch, the Constitution does not mandate that the legislature provide for patent protection of any sort. It merely permits the exercise of such a power within constitutionally prescribed limits. Thus, any legitimate exercise of patent authority in the U.S. must come from Congress and must respect the constitutional bounds that any grant of patents be for "limited times" and be done in such a way as "to promote the progress of science and useful arts." Legally, then, any patent system in the U.S., if adopted at all, must be authorized and defined by Congress with a view to promoting the progress of science and, implicitly, must employ "limited times" consistent with what it takes to promote scientific progress.
The first issue, then, is whether patents are needed at all to promote the progress of science. In the U.S., in spite of philosophical arguments to the contrary by Jefferson (http://news.ycombinator.com/item?id=1171754), this has never been seriously in dispute. The industrial revolution was already well in progress in 1789, when the Constitution was adopted, and the federal authority, though generally regarded with great wariness at the time, was seen as vital to protect the rights of inventors and to reward them with limited monopoly grants in order to encourage the progress of science. In the first U.S. Patent Act (Act of April 10, 1790, 1 Stat. 109, 110), Congress implemented its constitutional authority to sanction patent monopolies by defining patentable subject matter very broadly, to include "any useful art, manufacture, engine, machine, or device, or any improvement therein." Congress amended the Act in 1793 and then again in 1952, so that today it reads as to the idea of "patentable subject matter" as follows (35 U.S.C. sec. 101): "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
Thus, patents in the U.S. can be granted for any original invention that fits within the definition of patentable subject matter and that also meets the other conditions of the patent act (i.e., that is useful and non-obvious). Note, though, that the 1952 definition of patentable subject matter significantly expanded the scope of such subject matter in the name of bringing the patent laws up to date with developments in then-modern technology, all in the name of promoting the progress of science. It did so by defining patentable subject matter to include any "new and useful process" as well as any "new and useful improvement" of any original invention. Over time, "process" has come to embrace business methods and also software. And the protection of "useful improvements" made clear that new uses of existing machines or processes could be patented notwithstanding older Supreme Court decisions such as Roberts v. Ryer, 91 U.S. 150, 157 (1875) ("it is no new invention to use an old machine for a new purpose").
To promote the progress of science, then, Congress in 1952 allowed patents to be granted for any inventive process and for any inventive new use for any such process. In my view, this generally made sense for what was essentially the continued playing out of the same sort of industrial revolution that animated the original forms of patent protection granted in 1790. Looking at that language at that time, one could readily make the case that patentable processes and improvements thereon could and did promote the progress of science. Discrete inventions tended to be sharply differentiated and tended to involve significant development effort in time and resources. An inventor could keep a process secret and not patent it but the grant of a limited monopoly gave a decided inducement to disclose it to the world and, hence, to expand the broad pool of scientific know-how available to society.
Then came the digital revolution and, with software, a new or improved process can amount to an almost trivial variation on prior art amidst a seemingly endless stream of improvements developed in ever-rapid succession and with little or no capital investment beyond what developers would be motivated to do for reasons entirely independent of gaining monopoly protection for the fruits of their efforts. Moreover, there is little that is closed about such innovations: a wide knowledge base is in place, known to an international developer community that is basically scratching its collective head asking why it should be restricted legally from using techniques and processes that represent common knowledge in the field.
The main question, then, concerning software patents, is whether the existing framework makes sense as one that promotes the "progress of science" insofar as it grants patent protection to process inventions in this area. Congress needs to seriously ask itself that question. A second question, also tied to constitutional authority and assuming that it is legitimate to grant some form of patent for such inventions, is whether a 20-year period of exclusivity makes sense in an area where innovation occurs at blazing speeds and with not too much capital investment tied specifically to any given discrete invention. Is that necessary to promote the progress of science? That too is a question that Congress needs to consider.
Thus: (1) there is nothing magical about the current definition of patentable subject matter and Congress can adapt this to suit the needs of the time in promoting the progress of science, (2) process patents are in themselves a fairly recent phenomenon (at least in any large numbers) and it is no radical change to curtail them in areas where they make little or no sense in light of the constitutional purpose for why patents even exist in the first place, and (3) legitimate patent reform needs to go far beyond procedural fixes around the edges of the system and needs to focus on the realities of modern technology and whether the patent laws further or impede the progress of science as applied.
The policy debate can and will go all over the board on this but, if it is framed in light of the constitutional foundation for having patents in the first place, it can be shaped in a way that puts the focus on the fundamentals of what needs to be fixed as opposed to lesser issues that do not get to the heart of the problem. The main problem today is the blizzard of vague and often useless patents in the area of software. These are effectively choking all sorts of innovation and are benefiting mainly lawyers, trolls, and others who do not further technological development by what they do. It is a mistake, in my view, then, to swing too broadly in trying to fix things (as by advocating abolition of all patents) or to be so timid about the issues that reform is marginal at best and ineffective in dealing with the current crisis of an over-abundance of essentially worthless patents. Congress embraces the patent system as a whole and shows no hostility to its fundamentals. Reform must be shaped in light of those fundamentals but it must, at the same time, be meaningful to eliminate the main garbage from the current flawed system. Judge Posner has pointed the way generally and proponents of reform ought to follow his lead, with the focus being (in my view) on software.
I feel that a natural line to draw is computability, which rayiner has argued against in another comment. He cites an old communications patent as well as the ARM architecture patents as examples with protecting. I am not familiar with either, but I feel there needs to be a strong metric for patentability. To that end, I propose that we create a collection of patents that those of us whose innovations in software are supposed to be encouraged, feel are worth protecting.
I have a problem with any suggested systemic improvement where the available protection depends on either the cost of the inventive process or its duration. The industry averages sound good in theory, but the USPTO is not equipped to investigate the truthfulness of these claims, which themselves are extraordinarily susceptible to accounting tricks and the like. I don't believe the solution stems from increased regulation. Instead, I've been considering an alternative approach that I haven't heard of before: patents should be inalienable with their rights vesting exclusively in the inventors (jointly and with right of survivorship) for the statutory period. It follows that the state would have a vested remainder in those rights and that no inventor would be able to transfer their right to another.
This idea came after reading about the philosophical and theological concept of inalienable possessions. Paul Kockelman's first theoretical point on the topic concerns ontological classification: ``the gain and loss of inalienable possessions is related to the expansion and contraction of personhood.'' In other words, an individual's accumulation of inalienable possessions correlates with their personhood. Kockelman's second theoretical point asserts that inalienable possessions ontologically individuate, viz. they are uniquely identifiable with the particular individual for his life. Kockelman's final theoretical point is intimately related to classification and individuation: ``inalienable possessions historically and biographically trace.'' It follows that the inalienable possessions held by a group of people can act as a lens through which an observer may view that group's history.
Kockelman's formulation serves as a brilliant metaphor in the domain of Art. 1, Sec. 8, Cl. 8, because ``Writings and Discoveries'' are precisely the ``transcendent treasures'' that we must ``guard against all the exigencies that might force their loss.'' Overly litigious plaintiffs who amass war chests of patents constitute one such ``exigency.'' Another ``exigency'' occurs when universities strip patent rights from uncompensated students who took that one giant inventive leap. Universities justify their actions by asserting that the transfer was consideration for facility usage---an ``exigency'' that arguably constricts the affected students' personhood.
Many people question how an idea is patentable subject matter: the answer is that it's not. An invention isn't any idea: it's a process, machine, manufacture, composition of matter, or any new and useful improvement on any of them. During the inventive process, an inventor must maintain constant ``intellectual domination'' over his work, and but for a highly particular ordered set of neurophysiological reactions occurring in the prefrontal cortex (``the fugitive fermentation of an individual brain''), the idea would not have occurred at the instant it did. If the idea contemplates a novel and nonobvious invention, then it advances the humanities or sciences by that fact itself. The idea is a psychofact capable of acting as a vehicle ``for bringing past times into present'' so that the history of the inventive process elides into the inventor's identity. It logically follows that a chronology of all inventors in a society produces historically significant insight into the progress of the Arts and Sciences. By contrast, a chronology of patent assignees produces its own historically significant insight: the alarming increase in exigencies threatening the dissemination of these ``transcendental treasures:'' ideas. Accordingly, inventions are properly entitled to the appellation of inalienable possessions.
Applying Kockelman's theoretical points creates what, in my view, is a sensible reformation of intellectual property law. We can distinguish patents from other property interests by noting that patentability requires an idea to meet a series of standards that elevate it to the status of an invention. When an idea meets those standards, it becomes intertwined with the inventor's personhood---his conscious ability to frame representations about the world and act accordingly on them. The gain and loss of inventions is clearly related to the expansion and contraction of the inventor's personhood, because as he invents, the plans he formulates and actions he takes on his conscious perceptions change according to new representations based on the changed state of technological advancement.
In the end, intellectual property is different because it's inextricably linked with the property creator's personhood. Ideas are so profoundly human that it becomes unconscionable to think someone can claim ownership rights in a property interest arising out of another's invention. This solution isn't perfect, but it's one with which I would be more okay.
 http://www.columbia.edu/~pk2113/Article%20PDFs/Inalienable%2... at 343
All that stuff about 'personhood' and 'intellectual domination' and 'possession' is otiose. Any attempt to make an a priori case for intellectual monopoly seems certainly doomed to failure -- for a very simple reason: they do not fit the basic physical facts.
Informational goods are nonrival: they are copyable and usable with no loss to the original. The relation between copies of information is abstract. A copy adds its value, and subtracts nothing.
Two notable ethical points follow from that. Copying is consistent with the principle of universalisation: a general rule that all should copy is not self-contradictory -- the opposite: if we all do it, we all gain. Second, restriction of copying fails a basic rights-justification or liberty principle: we are restricted only so far as we would harm someone else, yet for the notion of unauthorised copying any claim of loss has no grounds in any physical fact.
Ultimately, we want to be governed by the basic physical facts and how their constraints and ramifications allow us best advantage. 'Personhood' justifications for intellectual monopoly seem about as reasonable a basis for regulating behaviour as believing that taking a photo takes someone's soul.
That is where I disagree. There's an important distinction between the inventive step leading to a discovery and subsequent copies thereof. A subsequent copy of an idea does not possess the same characteristics as the ``flash of genius'' in the mind of the person responsible for producing that idea. From this distinction, it follows that an idea, alone, has no intrinsic value--intrinsic value arises out of attachment to society.
Your argument is that an idea gains value as it spreads, but I don't think that's correct. Rather, societal advancement occurs when members of a society generate and produce novel ideas. There are two competing forces: (1) the spread of new ideas is akin to a positive feedback loop, since new ideas are based on old ones (there's evidence of this: technological advancement grows exponentially with respect to time); and (2) as an idea spreads, its connection to its creator fades, eventually causing misappropriation of that 'inventive step' and disincentivizing the creator's continued creation of new ideas. The belief that losing control over the spread of an idea on the basis that no harm to the information occurs from copies thereof is flawed: it focuses on the information, rather than the person who created it.
Permitting patent rights to vest only in the inventor transforms his talent into a commodity, rather than the fruits of that talent. It rewards the individual rather than those acting on the information for no purpose other than economic gain.
One of the most compelling arguments to me (against these patents) is that in pharmaceuticals, for example, you are dealing with a handful of patents. Some processes might be patented, maybe even some equipment (easily licensed generally) but basically the patents that go into a process (that may itself be patented) are minimal and can be reasonably well understood by those running such businesses.
Posner pointed out that a smartphone may well contain (and violate) thousands of patents. That right there is a sure sign that something is rotten in the state of the patent system.
The solution here isn't reform, as some suggest (ie raising the bar to what's patentable). It's simply to get rid of them. First-to-market and execution are what matters and what should matter. 20 year exclusives for vaguely worded patents on things that are more often than not obvious is just a means for big companies to extinguish smaller companies.
Meanwhile, if you look at how difficult it was for the concept of usability to break into the mainstream (it essentially required Microsoft's persistent application of market power to popularize ideas borrowed from Apple/Xerox/et al. and Xerox tossed a lot of money and time at PARC just for starters).
If patent law were an easy problem to solve, it would have been solved.
Problem is, this keeps out small companies trying to innovate beyond their corporate brethren. If I come up with something completely new and awesome, it might be two years before I can start manufacturing it and it might still be new and innovative then. HTC might have it out in 18 months. So during the time I'm designing and testing this equipment, I have to maintain complete secrecy through the entire supply chain, because if one link in the chain goes down, my billion dollar rivals have run off with the biggest idea of my five cent company.
Raising the bar and lowering the time frame would lower the barriers to entry moreso than removing patents altogether. Two years to get to market and then 6 months after release would be close to sufficient.
b) If you did, HTC is going to use it anyway and bury your suit in the courts until you run out of money (sorry)
c) Either way, your example only applies to hardware or you wouldn't have a supply chain or manufacturing
Ultimately, theft of the biggest idea of your 5¢ company doesn't warrant tens of billions of dollars of legal overhead.
Perhaps I agree that raising the bar fixes the problem: if your invention can be implemented by a general purpose computer, it does not deserve patent protection. And that's "can", not "is" : if it is at all possible to implement an invention in software, it is essentially math and does not deserve patent protection. Patent protection is for mechanical inventions (wheat threshers) and material transformations (metal casting). If pharma deserves protection, it is the exception, not the rule.
The point is, if there's absolutely no legal protection on ideas, ideas are worthless. People use the argument that math is universal and doesn't deserve protection, but the reality is that math is hard. If you come up with a math solution that is really clever, I feel you should be entitled to some kind of protection on it. What is hardware but applied math? Does programming not take man-hours of research and development? Does every line of code paid for make it to market? If we're arguing that R&D costs are what make sense for patents (like the pharma arguments I hear) then maybe you should have to show an itemized bill for your R&D and patent length could be adjusted so it's yours until you recoup that investment.
We trash on Edison for stealing ideas and beating the inventor to the PTO. The same thing could happen in software. The solution I see to this is making sure the original inventor has a reasonable time frame to capitalize on the idea before it becomes a free-for-all. By that point, the market has had a chance to speak and recognize your innovation. What we can all agree on is that patents shouldn't be a lifetime income source based on lawsuits.
E.g. my wife is pregnant, and we recently got an ultrasound. The ultrasound machine gave us a surprisingly detailed three-dimensional image of the fetus. I'd be willing to bet that the algorithms for generating these visualizations were not something you could whip up in a few weeks using Rails. Without patent protection, the maker of that software has to get into the business of building ultrasound machines. He can't just sell the patent to someone who builds ultrasound machines. I think there is a lot of value in being able to facilitate such specialization of labor.
Since you don't show a firm grasp on patents, let me provide an example of the problem. Remember that patents are a legal protection ignorant of independent discovery. Say that you created a new, successful communications tool. People are often bothered when someone sends them a message while they are giving a presentation, so you change their status from Available to Busy when their calendar says they are in a meeting.
As you become a big commercial success, IBM sues you for infringement of their patent on changing chat availability status based on calendar free/busy. They seek damages and an injunction until the matter is resolved. They will settle for 150% of your company's worth, or they will pay their lawyers to tie this up in the courts until nobody cares about your product or you run out of money.
Hopefully it is obvious that patents do not help innovation in this situation. Some will say that this is a case of a bad patent, and the solution is just to ensure that patents are good. The problem is that only a couple of people in the world could tell the difference between a bad software patent and a good one (none of them are judges or lawyers), and who are they to rule on IBM's lawsuit against you?
It is now on your head to request re-examination and prove that someone else had already created a product that uses a personal calendar to change away status based solely on information in trade publications and product manuals (if you can find them). Alternatively you could attempt to prove that the invention was obvious, which requires you to recreate the environment in which the patent was filed and convince a non-technical examiner that an average programmer in that environment would have found it to be obvious.
But let's cut to the chase and say that you run out of money. IBM can litigate their toilet paper patent for centuries without noticing, and you probably have a couple months of runway. This is what it means to have patent protection.
Licensing is based on copyright, a different government-granted monopoly. Why should software libraries be protected when software algorithms aren't? What you're saying is that you should be able to protect your "yet another JS framework" under copyright, but not something like a power control loop in a wireless device under patents.
> They can also license the math (which is not patentable) and have another team actually write the code.
You can license it, but you have no legal protection to keep people from copying it.
> Ideas that are not patentable can still be protected as trade secret, making them commercially valuable.
1) you can't transact in trade secrets;
2) trade secrets are of no use when embedded as software in devices.
Say I come up with a new power control loop for wireless devices. The loop allows radios to cause less interference while maintaining bandwidth. Say I keep it as a trade secret. If I put it in a radio and sell it, someone can reverse-engineer the firmware and copy the design of the power control loop. Trade secrets won't protect me. Moreover, I have to get into the business of building every kind of radio I might want to sell. I can't just sell the power control loop to someone who is good at building radios, because trade secret doesn't cover things you voluntarily disclose. Imagine the situation: I go up to Raytheon and say "I've got a great power control loop, I'll sell it to you for $50m." And they say "well, how does it work? We're not paying $50m without understanding what we're buying." And you say "well pay me first than I'll tell you!"
> Hopefully it is obvious that patents do not help innovation in this situation.
Agreed, but that's a phenomenally bad patent.
> Some will say that this is a case of a bad patent, and the solution is just to ensure that patents are good.
> The problem is that only a couple of people in the world could tell the difference between a bad software patent and a good one (none of them are judges or lawyers), and who are they to rule on IBM's lawsuit against you?
There are hundreds of IP lawyers with strong technical backgrounds who could tell the difference between the patent in your example and say the OFDM patent: http://worldwide.espacenet.com/publicationDetails/biblio?CC=....
The "chat availability status" patents are getting a lot of press on HN, but I spent years working at tech companies that produced patents along the lines of the OFDM example linked-to above. I think a lot of people on HN don't have the exposure to embedded software to be able to really appreciate what the other side of the patent coin looks like.
To keep other people from copying it. The people that you license it to will be contractually bound. Perhaps, but it will be expensive and time consuming for them to copy it. Patents are for a limited time, so this is an argument tied up in a comparison of how long it takes someone to unravel a complicated system, how long a patent lasts, and how much the inventor would license it for.
I think a lot of people on HN don't have the exposure to embedded software to be able to really appreciate what the other side of the patent coin looks like
That may be true. If you have made inventions such as these, you should protect them with trade secret because chat availability status patents are far more excessively damaging than strong signal processing patents are valuable.
Nobody is independently inventing the OFDM patent I linked to, at least not within the patent term. You're taking an edge case and making the debate all about that edge case. I think it's quite reasonable to have genuine independent invention as a defense to patent infringement, FWIW.
> You can write a contract for anything.
You can contract for anything, but you can't enforce the contract against anyone not in contractual privity.
> That may be true. If you have made inventions such as these, you should protect them with trade secret because chat availability status patents are far more excessively damaging than strong signal processing patents are valuable.
As I described above, trade secrets don't allow the crucial feature of being easy to transact in. And you have absolutely no basis for your claim that "chat availability" patents are more damaging than signal processing patents are valuable. You can point to the Apple litigation on one side, and I can point to ARM, Ltd. on the other, etc.
Sadly, I see this the opposite way. Quantity-wise good, innovative architecture patents are in the vast minority. If we are to deal with software patents one at a time, the combined effort dealing with bad ones far outweighs good ones.
Hah, I already updated my comment based on your updated comment! HN isn't the best for these kinds of discussions.
Nobody is independently inventing the OFDM patent I linked to, at least not within the patent term.
I have been thinking for some time that we need a collection of good software patents. Not having read the OFDM or ARM patents (for which I'm not qualified anyway), I don't know if they are "good". But I do know that one day we're going to invalidate a large percentage of software patents or watch innovation happen elsewhere. When that day comes, it will be important to have a list of things that are valuable, or else we'll end up with the bar that I described (anything computable is not patentable).
Unfortunately, I don't know of enough of them to seed such a database. Maybe fast square root or some of Carmack's graphics work. And as such I'm okay with seeing them 100% invalid. If you disagree, perhaps we can chat about it (email's in my profile).
I think that this situation could be resolved with a careful NDA and later a license, but you've provided some compelling examples that I think are worth discussing. Perhaps the end of software patents comes with a new sort of hybrid of trade secret and license? The only way to keep things safe in the future appears to be keeping valuable things secret (ask any DRM provider). Even now, how would you enforce a patent against a competitor with a DoD contract, or abstractly with a military contract in another country? The invisibility of software complicates patent enforcement, but not trade secret or licensing.
Okay, let's take that argument and run with it. If there are so very many talented IP lawyers with strong technical backgrounds, then why is patent law so bad in the first place? Why are we even having this discussion?
I think there are two reasons. First, I don't think there are enough good IP lawyers covering software patents and software patent law. Why? Software is a very new field and it is changing very quickly. Even the foundational structures of our industry are less than a century old. As such, it's very easy to sneak through "obvious" patents simply because they don't look obvious to someone outside the field. Second, the patent attorneys who do understand how software works and how software patents can be used to constrain and thwart software development all seem to be employed by patent trolls.
For example, let's look at the recent Kelora patent case . In this case, Kelora patented "parametric search" (e.g. drill-down search). They then filed suit against basically every online retailer that allowed shoppers to drill down by category. Now, to a programmer or a web developer, the concept for drill-down hierarchical search is obvious, maybe even a bit blasé. But to someone who isn't as well versed in software development, it can definitely look like a new innovation that deserves patent protection.
Fortunately, in this case, the patent was overturned. But not before it did its damage. Before Kelora took on the big companies, it managed to win settlements from a number of smaller firms . That highlights the true cost of software patents. The cost isn't mainly from the patents that are contested in court. The cost is mainly from the patents that aren't. It's the cost of a business that has to shut down because it violates a patent it didn't know existed. It's the cost of man years wasted because a product has to be redesigned to avoid patent litigation.
Yes, patents do protect innovation. However, they protect certain innovations at the cost of making other innovations much more difficult. In software, especially, they form a tragedy of the anti-commons, where, in effect, your competition has veto power over your innovation. It is increasingly clear to me that these costs do not justify the limited benefit that patent protection brings for software. That is why software patents should be abolished. They are simply not worth the cost.
Imagine I'm the guy building the ultrasound machine. Company A comes to me with this new algorithm they've developed to do nifty processing of the data. Things I care about:
1. Does it work
2. What kind of support do they offer
3. Does it run on my hardware
4. Will they continue to come out with updates and improvements
5. Do they have the right medical approvals
Even if Company B comes along with software that uses the same algorithm, or perhaps I decide to write my own software, I still need to rewrite this vast majority of code that is not the algorithm itself. And, as a hardware guy, I'll be bad at that. As Company A, you get to compete with Company B using that.
As for competition... I don't understand the dichotomy you're creating. That "vast amount" of simple code (the UI, etc), is protected by a different government-ranted monopoly: copyright. That's the only reason A can compete with B on that basis. But why is a large body of simple UI code worth copyright protection, while the small but complicated imaging algorithm isn't worth patent protection?
And your example doesn't address the specialization issue. Why do we want experts in ultrasonic imaging competing on UI and updates/support? Isn't it better for them to be able to focus on new imaging algorithms (their core competency), and sell those to someone who has an expertise in medical UIs?
I use this example a lot, but think about ARM. Aren't they a perfect example of the patent system working correctly? Isn't it great that they can sell their IP and let NVIDIA integrate it with a graphics core for consumer devices, etc, without forcing ARM to go into the business of manufacturing every type of microprocessor people might need?
I don't think it's obvious that they should naturally be allowed to prevent a clean-room reimplementation. The real innovative and creative work is in the designs that would be protected by copyright - the alleged "innovative circuits" subject to patent are really just being used as patent traps to prevent a clean-room reimplementation of the architecture - as anti-interoperability measures, in other words.
That's the thing I can't get past with most of your arguments on here. If an algorithm is truly unique and worth the patent then in reality it shouldn't need the patent at all.
I also don't understand the "I invented an extremely complicated algorithm for solving X" mentality. We all stand on the shoulders of those who came before us in solving more and more complicated problems. Without the software, algorithms, and general knowledge of computing that have been made available to us we'd not be able to take that and build ever more complicated systems on top of that.
Besides the probability of independent invention, the other key difference between the two cases is that in the former, you could never sell someone the idea of e-mail notifications in the absence of patent protection. In the latter case, the idea itself is very valuable--the patent just provides a legal structure that facilitates transactions.
As for the "standing on shoulders" angle, I think it's all about the difference between applied research and fundamental research. There isn't any money in giving away the fruits of your labor for the good of humanity (which is why top students from Harvard, MIT, etc, head to investment banks rather than fundamental research labs). And even amongst the altruisticly-minded, some fields are much more engendering of generous feelings than others. Nobody thinks the joy of blessing the world with more efficient filters for chemical plants is sufficient compensation in and of itself for the work put into designing those filters.
The Phoenix BIOS case was a copyright infringement case--IBM wasn't claiming that there was anything about the "how it works" of the BIOS itself that was protected, but that Phoenix must have copied the actual code.
Should clean room implementations be allowed when the "how it works" is the interesting part? Say I spent years developing an ultrasound imaging algorithm. I sell an ultrasound machine with that algorithm. A competitor comes along and says "gee, these work really well, I wonder how they work?" So they reverse-engineer my design, and do a clean room implementation of it, instead of coming up with their own design.
The current patent laws are insanity, but I don't agree with this. The class of mathematical ideas too abstract to patent should be distinguished not just by whether or not an idea can be modeled mathematically (they all can!) but by how fundamental the ideas are. The goal should be to protect abstract ideas that will naturally be discovered independently by mathematicians. Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals.
The current state of software patents results in people filing three sets of claims: the invention itself, a method that implements the invention, and a computer system that implements the invention. The rationale is that if invention claims (complicated math) are not enforceable, method claims might be, and if neither of those are, perhaps claims that mention hardware claim might be. You'll note that none of these motivations are strong, and that's because it has been left up to the courts to decide, and there is very little case law around software patents since everyone settles out of court. We think they are patentable because someone decades ago successfully enforced a patent regarding computer controlled curation of plastic.
Complex software that solves some real world problem shouldn't be disqualified on these grounds, since it is almost of exactly the same nature as hardware that achieves the same goals.
What makes complex software more valuable than simple software? Any engineer worth their salt will claim the precise opposite. Also, a product is not in itself patentable outside of the trade dress. You first have to find the novel invention inside the product, which is generally a simple idea.
Let's look at a concrete example. Suppose someone produces a device that contains some generic components: a centrifuge, spectrum analyzer, etc. and sells this device on the market. Someone else comes along and develops software that, with the aid of one of these generic devices, can detect a blood defect or airborne pathogens or whatever. Do you agree that this software should be patentable?
Maybe you'd say that the software isn't patentable, but using the software with the machine is? And attempting to sell a clone of the software wouldn't be patent infringement per se, but if it was clearly intended to be used with the devices would be inducing infringement and also a tort?
If that's your position then we agree in spirit, I think, though I think that looks mostly like double talk to me. If you don't think such a device should be patentable on the grounds that the only new component is software, then we disagree.
What makes complex software more valuable than simple software?
I didn't say it was more valuable, and I don't think complexity should even be a requirement. It's just that software that pertains to the real world tends to be complex.
Maybe you'd say that the software isn't patentable, but using the software with the machine is?
If you design a better blender, it is an visible improvement that can be immediately adopted by existing manufacturers before you can capitalize on your invention. There is little to prevent this from happening. It is unlikely that you will create a better blender, but should you manage to do so the people of the United State of America will grant you exclusive production for a limited number of years.
If you create software that better controls mixing equipment, you can license your software to existing manufacturers. You are protected from competitors by copyright and trade secret. You can license the idea to companies by developing software directly for their hardware and only providing them object code. If they create a new product based on reverse engineering your object code (clearly for reasons other than interoperability), you can seek damages.
Patents are for inventions which are expensive, visible, and not otherwise protected. Software, like literary works and the formula for Coke-a-Cola, has other protections. When patents are applied to industries where invention is common, hidden, and independent invention is likely, the system falls apart.
to clarify/add to your point - when we speak about pharmaceuticals, usually we are speaking about one patented molecule, one...
Before any pharma company can either start producing or outlicense, it shall go through Phase 1, 2 and 3 clinical trials. The cost of those is estimated [if we speak about serious stuff] close to 2-3 billion usd.
This sentence has made me think that there seems to be an amazing parallel between the patent industry and medicine. In the past, patents were quite simple and few, and one could see how things should go in patent disputes. Patents did not get complicated at a granular level because the level of knowledge necessary to identify how complex things can actually get did not exist yet.
For medicine as well, symptom analysis and disease diagnosis was very limited to our level of knowledge. As our knowledge increased, the complexity of our treatment strategies increased, such that there is a large overhead for diagnosis and treatment, just like there is a large overhead for patent disputes.
edit: great example: http://xkcd.com/931/
The difference is that for patents, it probably doesn't need to be as complex as it is, while for medicine, it probably does need to be as complex as it is.
What truly needs to happen is the governments need to recognize that for the markets to work properly we need to promote small and medium size businesses over mega corporations. Megacorps don't need any protections as their size is protection enough. For example, if you hit a small business with a $1million fine you've killed them. Hit big Oil or a mega bank and they most likely made more money off what ever you're fining them for than that tiny penalty.
Given that, I would say we take patents back to what most people that believe in them think they should be about: protecting the little guy. A patent should only ever be applicable to an entity under a certain size. Alternatively, to get a patent you should have to prove that you've invested so much in the development of a patent that not getting it means you're going out of business (e.g. Apple betting it all on the iPhone).
We need to be promoting small businesses, where as right now all legislation seems to give more ammunition to the big companies that already have all the tools.
This is a remarkable assertion. The point of patents is to allow for a monopoly for a limited time while a product ormideamis being invented. It was never a mechanism to be bought out by a larger company!
This entire argument is rife with problems. For example, you think that a million dollar lawsuit from a "megacorp" is no big thing - yet we just saw lawsuits between Oracle and Google, where Google won and yet still spent tens of millions in court. And for what? They gained nothing except the assurance that they can't be sued for damages... Talk about putting the cart before the horse!
No, the patent system is broken. Poster gives a variety of solutions, but the two solutions that would probably be most equitable are to reduce the term of software patents (no more than 10 years), force licensing terms when infringements are found (the license terms should be determined along with the patent), and a way of ensuring that any patent filed must have a commercial product of some form in the market within 5 years, else you lose the patent.
Administration of patents should be resolved too - there are too many patentsm being granted that should not be.
Wow, this guy really gets it. This is how markets and competition work. There's no need to give a company a legal monopoly. If anything, that lack of monopoly, will force companies to keep trying to invent new things to keep staying one step ahead of the competitors.
I also love this one:
"forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent"
These days big tech corporations are filing patents as fast as they can print them on paper. And then 95% of them will probably never be used in products that are shipping in the market.
That bit is, I think, is the key to unravel whole patents issue.
The other day I was wondering why it was that, somehow, I considered some patents valid and others invalid. For example, I consider many codecs (DivX, JPEG) to be valid patents, but consider patents on certain algorithms to be invalid. Weird, huh? Because codecs are just a specialized algorithm. I just couldn't put my finger to it.
And then it hit me: all the patents I considered valid were actual products. DivX and JPEG were patented, implemented and licensed. The codecs themselves provided a leap in technology, and without that particular codec the product wouldn't exist at all. The patents I considered invalid are either bells and whistles or lack a real implementation. In other words, the creators of DivX and JPEG were making real money by developing and marketing a new technology, whereas Apple (just using the example du jour, please spare me the faboyisms) is trying to shut down competing products by just pointing at a tiny feature and screaming "COPYCAT! COPYCAT!".
The day Apple shows that it's the rounded corners in the iPad that is making them money, and not the fact that they developed a really thin tablet with great battery life and a decent OS, I might reconsider.
He truly understands the field of law and even more, he understands the ramifications that laws and regulations have and how they will affect us in the future. If there was any hope of changing Patent law, this is where its going to start, through Posner.
Tangent, re: Posner and his place in the law:
The thing to keep an eye on is where his approach is helpful and where it isn't. His hammer is the field of law and economics -- he predicts and explains the ramifications of laws and regulations by casting them in economic terms and applying economic theories to them. That's really useful because economics is all about predicting how people will behave and how much value they'll create in various systems, and those are things the law should worry about.
It breaks down, however, in cases where the debate is about how to assign value to behavior. For example, his 2005 discussion of same-sex marriage vs. civil unions weighs the "outrage cost" of the passionate opponents of same-sex marriage against the interests of people who want to get married, coming down in favor of the first group. That might make sense if you assume that one person's outrage at another person's marriage is something that should be valued, like float(10-pissed-off-Tea-partiers) > float(1-happily-married-couple) -- but the whole point of the debate is whether that outrage deserves a voice in our law. His argument added basically nothing to the debate (other than, in my case, a tickling sense of annoyance) because he encoded his answers to the important issues in hidden assumptions about what was valuable and what wasn't.
This is not to drag the man down at all, who I think is amazing. Just to say that when you see a law and economics argument -- "we should do X, because if you view condition Y in economic terms it should lead to condition Z" -- you have to decide not only whether you agree with the internal reasoning, but also whether you agree with the implicit translation between economic terms and reality. Patents, of course, are the embodiment of an economic theory -- so they're the perfect nail to Posner's hammer, and I'm happy to see him out there swinging.
 In legal terms, whether it constitutes a rational basis or compelling interest for a discriminatory law. In social terms, whether it's something we want to care about and cater to.
I don't see how this could help, especially with software patents. For every nonsense patent, you could always hire an intern to code it up in an app. Even if it gives you zero business value, you can claim that you're using it internally (or including it in something that you're selling to users). The courts are not well equipped to debunk such claims.
I mean really, could you quickly determine which pieces of infrastructure at google are actually not useful? Which pieces of iOS code?
And for hardware patents, it seems even worse. If I come up with an awesome idea for implementing an adder on SOI, it might take years and millions of dollars of fab time to get that idea into production. Should Intel be able to take it for free just because they already have a fab ready to go?
If your plan to eliminate patent trolls can be easily thwarted by spending a few grand hiring an intern, it is not a really good plan.
Also, as noted elsewhere in the thread, trademarks do behave like this: use 'em or lose 'em. They could be similarly gamed, yet it works in practice.
Small entities can only hope to be bought by or licence their IP to larger entities to see the fruits of their innovation brought to actual consumers.
Small entities create innovation across the board and the judge is missing out on them here, imagining most relevant patents as being ascertained by large organizations.
See chapter 9 for an historical analysis of the pharmaceutical industry in countries without patents. The surprising result is companies no-patent protection countries were producing equivalent new drugs as the patent protected companies.
Now I am full anti-IP advocate, except for certain trademarks and attribution of authorship (so people know who the company/author this product came from).
Whenever a judge decide something, it usually make me like them.
In fact, Americans trust their judges more than their politicans and bureaucrat. http://www.gallup.com/poll/143225/trust-legislative-branch-f...
While I enjoy reading Posner's opinions, I think he should run for office if he wants to be in the political spotlight. I don't want judges creating and pushing new political theories. I want them to spend their time and energy understanding the laws created by legislators and interpreting those laws as best they can through the filter of the Constitution.
For specific drugs, this may be the case, but when you have pharmaceutical companies doing things like patenting specific gene sequences, causing both other companies and academics to have to get licenses/permission just to perform research on something completely different, that's just ridiculous.
How patents work should be more flexible, and not limited to just whatever industry they're in.
What most people are calling "software patents" are actually business method patents, which do not necessarily involve software at all (though many of the infamous ones do). Business method patents are relatively new and largely unique to the US.
To me the obvious solution, and the one missing from this list, is to abolish patents altogether in such industries ( including the tech industry). I wonder if judge Posner would agree, and if so, why not come out and say it? Would this be considered too radical at this point in time?
This hierarchical and networked architecture is inevitable and it is the best way to organize such complex information, however the stability it requires at the bottom of the pyramid of code means that some building blocks cannot be changed once the pyramid is built. Someone claiming ownership of the shape of a bottom-center block after the pyramid is built, someone having the power to force a bottom block to be removed and replaced with a different shaped one, no matter how simple and obvious this bloc is, does not have power over just this block but over the whole structure above it and all the components that depend on it. This means patent holders have a disproportionately large amount of power when they target such a bloc. From a possibly trivial piece at the bottom, they can control a vastly more sophisticated structure built on top which they had no part in conceiving. They know that changing it would require tearing down, redesigning and replacing often tons of dependent work and probably break compatibility for huge amounts of users of these projects.
The optimistic in me would love to believe there's a brilliant solution, which is way over my head. The realistic in me, can only see paradoxes and no obvious solution. Maybe I'm just too dumb to solve this problem myself.
I believe the right path is to look back at what the vision behind patents are in the first place (incentives for invention), and think from the ground up how we can implement this without the modern "necessary" dogmas (such as licensing or IP). Then I can actually think of plenty of solutions. But none of them even remotely resembles what we know today as a patent.
For example :- somebody could patent teleportation - define it and then when somebody does all the hard work and actualy invents a teleporter, you are then able to cry patent violation and cash in. That too me is compeletely wrong, yet that is how the patent system stands currently.
I have also noted that alot of patents that have no working prototype or product, all seem to have been done in some SCI-FI movie/TV series priviously and find it somehow suprising that the movie industry have not started jumping on this patent bandwagon as they have more of a working prototype than many awarded patents that get approved in this day and age.
My best example is a very experienced engineer I used to consult for. In the process of explaining something to me, he had an epiphany and came up with a new method for "leveling" high power battery packs. Over the next few weeks, he tested concepts of the idea and was able to fully describe the design.
Problem? He was an old analog power supply design engineer who knew nothing about programming and the only way his idea would be feasible would be using software. He couldn't build it, so I did, for him. Eventually he patented the idea.
The point is that he could have gone through the entire patent process successfully without a working implementation. Should he have been refused a patent because he didn't have the skills to build it himself? What if he couldn't afford to pay me to implement it? The idea itself is no less valuable: he was obviously capable of explaining it well enough for someone to code the controller. I would argue that it's exactly his type of problem that necessitates a patent: someone with a brilliant idea, who can clearly describe how it should be implemented, but can't afford to do it himself (tooling up to build these things in quantity requires a lot of capital) and is willing to sell that patent to a manufacturer for final implementation.
Disclaimer: I can't guarantee that the patent system will operate consistent with the law.
Just think about that: the people who would actually do the work and get the product out are preempted by someone who is just sitting on his arse. How is that encouraging innovation?
If it comes down to a lawsuit and there was no reduction ot practice, a patent can be thrown out. Of course, when it gets to court it's very expensive for everybody.
The best way to demonstrate the practicality of a software invention, for instance, is to attach working source code to the patent -- with the funny consequence that a strong software patent involves, in some sense, a contribution to open source.
So, let's so with your example. Someone has an idea for a teleporter, and at great expense comes up with the blueprints that will let it be manufactured. However, it will take $3 billion and 2 years to create a working example.
With patent protection, the inventor can seek out industrial or financial backers to produce it. Those parties can hire their own scientists and engineers to verify that the blueprints ought to work.
UK perspective: what do people here think of this suggestion, perhaps even as a temporary 'damper' on the patent troll business model? Raising the barrier to litigation would perhaps slow down the rate at which these cases occur. In the UK, we have a special court for trying IP cases, and the barrier to litigation is very high, perhaps too high for some small companies. Of course, the EU does not allow the granting of software patents.
That "very plain language" only excludes business method patents i.e. "...on a computer" or "...on the internet" patents. These are not computer algorithm patents (for example, a new sorting or encryption algorithm). The term "software patent" does not denote a distinct class of patent.
Computer algorithms are patentable in the EU. I can think of many, many examples of computer algorithms that are patented in the EU (e.g. crypto patents, compression algorithms, codecs, etc.).
"The following in particular shall not be regarded as inventions [...]: schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers."
My original point stands: I can't see the logic in any district court having jurisdiction over patent cases.
Patents have become a hideously bureaucratic market unto themselves, creating a kink in the hose leading to the fountain of progress, but the fountain attained its magisterial beauty partially as a result of the motivation to circumvent roadblocks.