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On Patents (notch.tumblr.com)
340 points by Divinite on July 22, 2012 | hide | past | favorite | 179 comments

If you own a software patent, you should feel bad.

Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this statement.

I can believe, philosophically, that relatively high tax rates will benefit a society. That doesn't mean that, even in so believing, I wouldn't do my utmost to minimize the tax that I pay within the rules provided by the law. The question before me when I make such decisions is what makes sense for me as an economic actor, not what the broader policy for society should be. And there is no reason I should "feel bad" for acting in my own self-interest in that case even if I believe the rules should be otherwise.

So too, if I am a founder, I can abhor the idea of software patents while still using the full range of IP protections afforded by the law to enhance the value of my startup. If getting a software patent for my company's early-stage innovations enhances funding valuation, acquisition pricing, and competitive edge in the marketplace - and if the law says this is a perfectly legal way not only to protect but also to gain monopoly protection over intangible assets that my company has and others don't - my decision here will turn on weighing the costs of getting such protection (money costs, disclosure risks, etc.) versus the benefits, the likelihood of qualifying for it, and similar considerations having nothing whatever to do with the abstract policy debate concerning whether the law should afford such protection in the first place. What is more, if I don't avail myself of such protections and if a competitor later does so in a way that hurts my venture's prospects because I now have to surmount legal barriers that wouldn't even have been there had I acted to protect my company's legal interests in the first place, then I have done affirmative harm to the people who trusted me to run my company to its best advantage - whether they be my investors, my co-founders, my employees, or just my own family members who might suffer if that venture should fail. This does not mean I need to blindly pursue some form of artificial legal protections for my company's innovations. It means that I need to make intelligent judgments about availing myself of such protections as opposed simply to categorically rejecting the idea of using them. In short, I need to be smart about protecting my venture using the tools afforded by the law and not forego those tools out of some philosophical preconceptions I have about what the law should be. The "should-be" part of the law is basically irrelevant in this context for most entrepreneurial decisions of this type. And there is certainly no reason to "feel bad" owning software patents if they turn out to be helpful for one's venture in this context.

Maybe this will be seen as narrow, unenlightened, lawyer-driven thinking. It is, however, my universal experience in having dealt with countless founders over many years. Without exception, they have all acted consistently with the pattern I describe and there is no reason they shouldn't have. It makes perfect sense for a rational economic actor. Startups have enough risks as they are. There is no reason to add to them artificially owing to social pressures telling you to "feel bad" for doing what is right for your company.

I know the sentiments against software patents are strong here on HN but there is a big difference between a policy debate seeking to influence Congress and actions that make sense for individual actors having to deal with the realities of the law as it exists today. One can condemn the idea of software patents generally without necessarily passing censorious judgments about the actors who need to deal with the law as they find it.

So what you're saying is, you'd like to talk like you have a virtuous outlook on life, but you don't actually want to own up to the consequences of said virtue. I can understand this outlook. It is easier to pander to people and act in your best interests than actually suffer the consequences of your ideals.

However, I might note that this approach is easy because it seldom accomplishes disruptive change. If you want to really disrupt a market or community, you will often face difficulty, incredulity, ridicule, and unfair play. So it may actually be in your long term best-interests not to play this way.

As a capitalist-friendly example, I'd like to point to the iPhone. Apple took a huge risk (especially financially); faced extreme difficulty in developing and sourcing the device; faced ridicule on all sides at the merest rumor of the iPhone; and had to fight very hard to not have a carrier completely destroy the product with their (still present) status quo of "differentiating" every product. However, the end result completely disrupted the phone industry. It's also fascinating to note that the "lawyer-driven behavior" has appeared from Apple as other parties have started working furiously to catch up, and finally begun to succeed.

I have worked hard throughout my career to make sure that my name has not ended up on a single software patent. When I was at Microsoft, several were proposed around work I did for Powerset (and 1 was proposed from work I did at Lockheed Martin). I did everything I could to shoot them down and stop them, because I believe they are wrong. Maybe I've hurt my career with this approach, maybe all I've done is piss into the wind, I don't know.

> So what you're saying is, you'd like to talk like you have a virtuous outlook on life, but you don't actually want to own up to the consequences of said virtue. I can understand this outlook. It is easier to pander to people and act in your best interests than actually suffer the consequences of your ideals.

That's not the point they were making at all. One developer refusing to file for patents on their work is not going to make any difference and will only put them at a competitive disadvantage. Reforming patent law will benefit everyone equally. Until the time that reform happens, there's no need to make yourself a martyr.

> One developer refusing to file for patents on their work is not going to make any difference and will only put them at a competitive disadvantage.

Every developer says this individually, and they're right. But if we all were more diligent about shooting down spurious software patents as a matter of professional pride, it would be a better world. That is to say, if it was considered part of professional ethics to help vet patents for obviousness and prior art for software.

And if the thesis, "The patent system is broken" is true, then we're all already at a competitive disadvantage. The pursuits are not mutually exclusive the way you make them sound.

Personally, I am tired of everyone saying, "This is the way ____ is done." What you feel there is the status quo, and it is demonstrably not a good thing right now. Do you think these UK banks adjusting Libor have a similar speech about competitive advantage?

If we only define "success" but facile metrics like quarterly revenue, then we're going to dig ourselves a hole we will never emerge from, all while piously protesting our invisible hands are tied.

Why don't you go make an impassioned plea to the patent trolls? I'm sure you can solve this problem at its source.

I am not making an impassioned plea to patent trolls. I can't change what the people before me did. Instead, I'm trying to have my actions reflect the kind of world I want to live in.

That doesn't mean I don't donate time/money/my voice to lobbying for this cause. It simply means I try to be consistent in this.

"Be the change you want to see" -- Gandhi

> One developer refusing to file for patents on their work is not going to make any difference and will only put them at a competitive disadvantage.

That is precisely the prisoners dilemma


and is a classic example of short-term thinking (for a better story, see "iterated prisoner's dilemma"). Specifically here, if one developer refuses to file for patents and influences his fellow developers to do so as well, they can eventually change society. And such influence is much more possible when not only talking about how bad patents are but when actually refusing to file such patents.

A person that is against patents will make no societal difference whatsoever by abstaining from them, while hurting their bottom line, so it is not worthwhile. The best way of changing patent law is by lobbying the government. Individual personal efforts of avoiding patents will be completely inconsequential.

> Individual personal efforts of avoiding patents will be completely inconsequential.

Were every software engineer to do what I do, there would be far fewer spurious patents.

"Individual personal efforts of avoiding patents will be completely inconsequential," is the worst sort of abrogation of personal responsibility.

Right now we have some number of people who wish software patents did not exist but hold them anyway. And we have some number of people who are happy that software patents exist.

My guess is the second set are causing all the problems, and that even if everybody in the first set decided to give up their competitive advantage based on their principles, the world would not be a significantly better place.

What about the set of people/corporations who are happy that they legally own the rights to patents granted on the basis of the intellectual work of people who wish software patents did not exist?

It is completely irrelevant how the world would be if everyone did X, since it will never happen. The only benefit of not using patents is a righteous feeling.

It would be much better if everyone who choose to not use patents would instead use patents to earn more money, and use this extra money to lobby their governments to change the laws. It will have a drastically higher ROI.

The concept of obtaining money wherever your comparative advantage lies (even if that has negative externalities), rather than working in a less efficient feel-good occupation (peace corp etc), and then doing more good with the money than you ever could have in the soup kitchen, is the acme of rationality. See Bill Gates.*

* obviously in some cases the claims of charity don't measure up to the damage done making the money. I think Bill Gates happens to be winning, but that's not the point.

(shame on whoever downvoted is74. It's fine if working in a soup kitchen makes you happier. You don't have to feel threatened by a suggestion that you should consider alternatives, if you're capable of making lots of money)

I would agree it is rational, if most people who try to make a lot of money via said "negative externalities" succeed and then become philanthropists of note.

Very few people succeed to the degree that Bill Gates has. Fewer still put their money to the good uses Bill and Melinda have been espousing. So while it is possible to end up with a positive outcome, these outcomes represent a minority.

So no, it's not particularly rational. It sort of assumes you can guarantee things you have very little control over.

You don't have to guarantee anything in order to make the consequentialist-rational choice in the face of uncertainty. You just approximately weigh the expected outcomes.

You can't seriously argue that the consequences of creating+controlling a software patent (while advocating against software patents) are always net negative. All you have is your "if we all did our part" Kantian argument, which I respect, but decline to follow.

> You can't seriously argue that the consequences of creating+controlling a software patent (while advocating against software patents) are always net negative

I actually don't argue against "all software patents." Truly novel work should be patented. But Software patents should be explicitly enumerated, their definition of "obviousness" refined for the field, and their duration shorted substantially (5 years?).

For example, the software and hardware that went into FingerWork's TouchStream keyboards (which Apple bought, btw) was excellent, novel work. They advanced the state of the art as they produced a product, and they deserved to be rewarded for that risk and innovation.

The problem is not the existence of patents. The problem is the lack of a clear definition for software patents and the abuse this void is suffering.

And I was specifically arguing against the idea that Bill Gates is an existence proof for abusing society for personal gain being justified by potential future good. Not only is that outcome rare, but Bill Gates has been demonized far more than his personal actions deserve.

Ok, why don't we skip the next elections then? Just lobby for your candidate and let the government decide.

> It is completely irrelevant how the world would be if everyone did X, since it will never happen.

"And that, my boy, is why your fancy horseless carriage will never succeed."

That is surely dependent on what they choose not to patent. If they choose not to patent a new variety of floral hat, then there is unlikely to be much societal effect when compared to choosing to patent the hat. However if they discover a method for turning bullshit into an unlimited fuel source or something, then there would be massive social implications in whether the inventor chooses to patent or not.

As a software developer who has had 3 patents taken out in my name based on my work, I completely understand this statement.

For me the "oh shit" moment was when I was informed that 2 separate sets of patent trolls had looked at the patents and had valued them at easily over $100 million if used to sue a number of major companies, including Facebook. I'd like to believe that I've created a lot of economic good in my life, but not that much. And that my work could be used do that much damage to other people who have done nothing wrong but happened to independently come up with the same ideas later - that makes me sick.

Luckily by an odd coincidence, the patents taken out in my name have wound up in a place where they are unlikely to be used to cause this harm. But I have no control over them.

The same is true for a startup founder whose startup takes out patents. There is no question that - for the reasons you give - they would be foolish not to pursue patents. However if you pursue patents then your startup fails, your patents can be acquired by a troll for a song. Or if you succeed in being bought out, they will pass out of your power, from which point it is someone else's decision what happens with them. Should they, down the road, be used to damage someone else for more than your startup ever managed to make, how will you feel?

My attitude is that patents are becoming weapons of mass economic destruction, and a serious tax on innovation. Before taking a patent out, I would recommend that you think hard about that fact. Because if you don't think about it now, you will have ample time to reflect and have regret if the worst happens.

Edit: In case anyone is wondering which patents, US7743404, US7774612 and US8209541. The second and third came as surprises to me, but these things happen once the patent office examines the patent. Part of what makes them valuable is that a good literature review was done at the tim. A number of major companies had tried to solve the same problem, but had come up with worse approaches. Then OpenID came along, solved it in the same way that I did, and everyone who uses that is potentially liable.

>valued them at easily over $100 million if used to sue a number of major companies, including Facebook. I'd like to believe that I've created a lot of economic good in my life, but not that much //

That's not how market based capitalism works though. The valuation is based on the valuation of FB which is based on the ability to drive a market to exchange shares at a particular value. In effect the company behind the shares is irrelevant as possessing the shares, or borrowing them, can turn a profit for traders whether the company is successful or not.

In this sort of economy you're riding on FB's coat tails. If FB crashes or booms that doesn't make your contribution and different in real value to mankind but it makes the value in currency of your contribution fluctuate.

>if you succeed in being bought out, they will pass out of your power //

Only if you choose to give them up in that way. Also they'd only pass like that if they're owned by the company anyway, in which case they're not your patents. If you sold them to the company then you could have made conditions on the sale or simply licensed the patent instead.

>Then OpenID came along, solved it in the same way that I did //

I struggled to understand the link because both of US7774612 and US8209541 appear in their main claims (1) to use a shared secret and I wasn't aware this was an optional component of OpenID (eg http://openid.net/pres/protocolflow-1.1.png). In the first of the patents '12 does the existing storage on the first server of "usernames" for authentication with both servers match with OpenID? It seems to require that the OpenID trust provider would have to hold information on the site to be accessed (consumer) prior to initiation of the request by the user? That is for example, to post a comment on blogger.com my OpenID provider would need to have a blogger.com username already stored before my request for authentication.

As an aside do you believe the claimed invention was both novel and non-obvious at the time at which you received the patent? Do you think the company was spurred on by the idea of receiving a patent, if they haven't used the patent to license out the process then why didn't they make a defensive publication instead do you suppose?

I was not informed of the exact analysis by which it was decided that they were infringing.

I do know that the technique was sufficiently non-obvious that at the time the various single sign-on solutions that were being pushed (eg Microsoft's Hailstorm) relied on having a single central authentication mechanism rather than having a method for allowing for multiple authentication providers.

In short while I don't personally think that a patent should have been offered for that, I do think that it is a much stronger patent than many other software patents. If I had my life to do over, though, I'd have more strongly objected to that patent than I did at the time. (It came very, very close to being sucked up by some patent trolls and used to sue everyone. Luckily the left hand did not know what the right hand was doing, and while one person was getting it evaluated, another one sold it into a defensive patent pool. Whew.)

The patent was taken out because it was something that they thought was patentable, and they wanted to have patents to their name. It was used in a product that allowed us to deep link to a partner, and have people arrive already logged in from our link.

Unfortunately the time it takes to get patents is so long that long before the patent was awarded, that product was discontinued and both authors had moved on to other employers. Indeed this was true by the time that the patent office came back with its first review.

Thanks for your insight.

I think there's a categorical difference between what you think about software patents and what stronger opponents - possibly notch - do. You consider them a bad public policy. They (well, we) consider them morally wrong.

It's hard to give you an example without knowing you, so forgive me if I go with an extreme example. Let's say your company does a physical product, and you find a country where it's legal to employ children, which would reduce your labor costs by 30%.

It makes economical sense to do it, but would you?

Now, you may find it ridiculous to compare child labor with software patents - and I admitted my example is extreme - but the fact remains that Notch and others consider them inherently wrong and therefore believe that people who engage in such behavior are to be criticized.

"Software patents are bad, but they are legal and everybody is doing it, so I have to do it, too."

grellas, I respect your opinions and appreciate your contributions here on HN, but this is wrong.

There are countless profitable and legal but unethical actions you could substitute in your analysis that make "perfect sense for a rational economic actor."

I own a patent and I do feel bad. The idea was ridiculous, but I had our corporate lawyer swarming around me like a swarm of bees. I tried to explain to them that the idea is obvious. I even tried to get my name off the patent. Wasn't possible. Software patents are bad. period. An idea does not cost anything and it's not like you won't have an idea if you could not patent it. Patents should protect r&d cost, things that would not happen otherwise

Which patent?


>"Patents should protect r&d cost, things that would not happen otherwise" //

Can you conceive of a method by which patents can fairly allow for R&D costs to be recouped but would not allow money to be recouped that hadn't been paid out? Does this removal of incentive trouble you at all - the premise on which patents are founded is reward for sharing an idea with the public, without that reward will inventors share the details of their inventions?

Personally I would just make the patent term significantly shorter. I think the pace of technological change has advanced enough that this won't cause a significant problem in recouping R&D costs. A term of 8 years, say, would allow enough time to recoup expense and gain a reward whilst allowing the public domain to benefit from the invention much sooner - it would be nice to put a revenue cap in place instead of a short term (to protect a small inventor who produces something beneficial for a small sector at great cost, or similar) but in practice I think that would be too difficult to legislate for fairly and without leaving too many holes for major corps to exploit.

Which patent?

I like the idea of a rebellion by the people whose names are on patents, where they help with the invalidation. It could be a reasonably successful prioritization strategy.

Does this removal of incentive trouble you at all

The public good is usually best served by healthy competition. Problems occur when r&d for an invention is very costly. This is not the case for software patents.

Can you point me to a software patent that is protecting something of value (in term of cost of the invention)?

And, personally, no, it does not bother me. Both me and the companies I worked for would have been better off without software patents.

Like the author I do believe that copyright is a very important and useful legal construct (even open source software would not exist in its current form without it).

Which patent?

Sorry, don't like to identify myself.

Do you own it, or are you listed as an author on it?

There is a very significant difference.

Sorry, yeah that's an important distinction. No I do not own it. The company I work(ed) for does.

So you're quite ready to admit that any moral consideration is moot for you when business is involved?

It's a shame this seems to be the case in much of the world of business. My stance would be that if I find software patents to be detrimental to society, worthless as anything other than legal weapons to stifle competition, then it would morally suspect to engage in taking them out.

I can state this more concisely:

It is not incongruous to both

1. ask for the rules of the game to be changed such that we would all move from a sub-optimal Nash equilibrium to a better Nash equilibrium

2. Continue to personally defect and maintain the current sub-optimal Nash equilibrium while calling for the _game_ to be changed such that the sub-optimal Nash equilibrium no longer exists. Unilaterally cooperating results in losing (and evolutionary selection effects might result in all such do-gooders being eliminated).

Note that this is not possible in a Prisoner's dilemma because the point of trying to change Patent law (or change Tax law) is akin to changing the game from a Prisoner's dilemma to something else. I.E. The advocated course of action is _outside_ the game.

I do not understand why the economic self-interest exercised within the boundary of the law should always trump the sense of guilt. To test the argument think about a statement like "If you own a slave, you should feel bad" made around 1800. It was legal to own a slave in 1800, but it was still wrong.

Your attitude only keeps the status quo in place. We need to be radically opposed to patents, there is no good in them whatsoever. They are a gross injustice to decent people trying to create new things and move humanity forward and deserve not the slightest bit of legitimacy.

>Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this statement. I can believe, philosophically, that relatively high tax rates will benefit a society. That doesn't mean that, even in so believing, I wouldn't do my utmost to minimize the tax that I pay within the rules provided by the law. The question before me when I make such decisions is what makes sense for me as an economic actor, not what the broader policy for society should be. And there is no reason I should "feel bad" for acting in my own self-interest in that case even if I believe the rules should be otherwise.

Well, I can understand your position, but this is the very definition of selfishness and hypocrisy that you describe.

Not sure if the irony here was intentional but...

> But there is no way in hell you can convince me that it’s beneficial for society to not share ideas.

See, this is what's broken with the patent system. Originally, patents were supposed to encourage idea sharing. The idea being that, if you couldn't protect your ideas, then you were likely to keep them a secret. Patents give you just enough protection that you can share them. You share them, and then if the idea is good, people pay you to use that idea in their own work...

So, how about this: you can get patents, but licensing fees are regulated. Say, you take the average number of patents produced by a company in a field per year, divide the average expenses for those companies by that number, and divide that total by the number of companies in the field (that might be interested in licensing the patent), and that's your regulated patent fee.

This would ensure that, for example, the pharmaceutical industry (where average cost per patent is something like $10 mil) would still be able to charge appropriately high fees to license patents. The software industry, on the other hand, where patents are handed out like candy, and the number of companies that could license your patent is huge, would end up with licensing fees of something like $10.

I'd pay $10 for your software patent.

That's probably all it's worth.

You still need to fix 2 other problems with software patents, otherwise it won't work.

1) shorten the software patent period to 3 years

2) dramatically decrease the vagueness and triviality of software patents somehow

Otherwise, you end up like in the mobile industry, where something like 250,000 patents exist in any given phone, and I assume most of those are not enforced, but if they were regulated, and manufacturers were forced to pay for them by default, I could easily imagine patents costing more than the product itself. This is why you need to drastically reduce the number of patents as well.

Well, I think my system would actively incentivize the reduction in the number of patents. Fewer patents would lead to higher licensing fee per patent, so you'd have an incentive to only patent the stuff that really matters (since every patent has a base cost to acquire).

Also, I'm not proposing that there be some sort of strict requirement that you must pay the licensing fee for all the patents you use. Obviously cross-licensing agreements and such would still be valid.

What I'm trying to cure is the system the patent trolls currently operate under:

Patent Troll - "I'm going to sue you for $1 mil for infringing my patent unless you pay my licensing fee."

Startup Founder - "How much is your licensing fee?"

Patent Troll - "Only $10,000"

You have to keep in mind that most patent lawsuits never see judgement. They exist only to coerce alleged infringers into paying licensing fees. The problem is that the licensing fees are arbitrary. They are not reflective of any sort of market, but rather reflective of infringement-penalty * chance-of-judgment-against (well, I guess this is a perverse sort of market: a market of jury pools).

It often takes more than 3 years to commercialize fundamentally new computer algorithms. It is not just development and implementation, there is also an integration and transition period from software designed under the assumption of previous algorithms. 10 years is probably a more reasonable limit for computer algorithms. The R&D cost that goes into computer algorithm patents is often substantial as well.

When people say "software patents" they are usually talking about "business process" patents, not computer algorithm patents, and business process patents should be disallowed generally. They are inherently vague.

>When people say "software patents" they are usually talking about "business process" patents, not computer algorithm patents, and business process patents should be disallowed generally.

You are contradicting yourself. "Business processes" are nothing more than algorithms, themselves. Algorithms are math. Math isn't patentable.

Not at all. What distinguishes "business process" patents from other patents is that any specification strict enough to be on par with traditional patent matter are largely useless; they are uniquely vague in their specification because that is what makes them useful. This allows an enormous amount of scope creep simply based upon the subjectiveness of the interpretation.

Computer algorithms are "math" in the same way that chemical process patents are math. By the criterion upon which you deem computer algorithms to be math, you can prove that all subject matter is math via algorithmic information theory. To make the distinction, you can patent a specific sorting algorithm (legal, there are an infinite number of such algorithms) but you cannot patent the idea of sorting (illegal because it is a mathematical concept). If the argument that computer algorithms are invalid because they are mathematical concepts is going to be made, it needs to be applied consistently which would exclude all currently patentable subject matter.

In fact, computer algorithms have always been considered patentable subject matter around the world because they strictly specify the design of an electronic circuit. Electronic circuit designs are a traditionally patentable subject matter. A mathematical concept has no such specification.

>If the argument that computer algorithms are invalid because they are mathematical concepts is going to be made, it needs to be applied consistently which would exclude all currently patentable subject matter.

I wouldn't argue it that way, but you are correct: nothing should be patentable. The whole patent system is wrong and fucked up, we need to get rid of it before it causes even more irreparable harm to mankind.

Indeed. Also may I say "thank you" to the Supreme Court for their wonderful decision in Caraco v. Novo Nordisk, which more or less ends the usefulness of method-of-use patents for drugs.

I thought 3-5 years would be a good enough length of time (leaning more to 5 years for physical applications). Though companies may still then hoard technology that isn't ready for the market yet, which would slow innovation. Longer patent times are perfectly fine if fees are regulated.

At the current rate of change 1 year is more than enough for an iPhone/iPad/kindle/etc... to completely dominate the market in terms of mindshare. Software patents need to go away immediately, and technology patents, if needed at all, need to be a year at most. If your idea is so easy to copy, then it probably wasn't that great of an idea anyway. It's taken 5 years for Google to truly catch up to the iPhone/iPad and be a real competitor.

That is a common misconception. Actually patents were an adaptation of an existing system where royalty would give monopolies away to companies they liked.

No-one did any scientific tests at the time to ensure that they were a good idea in the first place. Now those who do retroactive studies are ignored.

>Actually patents were an adaptation of an existing system where royalty would give monopolies away to companies they liked.

Do you have a historic reference for that? According to Wikipedia, the earliest known patent law was in Greece, 500 BC, and modern patents are said to have originated with a statute in Venice in 1474, but no mention is made of this being an adaptation of royalty favoring companies with monopolies (which obviously was a practice that extended long after 1474).

I can back this up. I took a course last year from a guy who's one an expert on the history of IP law (http://www.adrianjohns.com/). The patent system in its modern form grew out of the statute of monopolies (https://en.wikipedia.org/wiki/Statute_of_Monopolies), which was intended to be used only in cases of new innovation, but royalty abused it by granting monopolies on common goods to favored merchants (who paid exorbitant fees for the privilege).

Actually most of the world, that has gotten rid of royalty, seems to be doing its best to bring back at least some of the trappings; for example, http://westhunt.wordpress.com/2012/07/21/presidential-transp...

A single product likely infringes on thousands of patents (a possibly dubious Google/RPX estimate was 250k patents for a smartphone), in which even $0.01/patent becomes unsustainable. Especially in software, chances are that you didn't learn about the ideas in the patent by reading the patent or observing products that use the patent, but rather on your own while solving a problem.

I guess I should clarify: there are different sorts of licenses. Some are per device or product sold. I was referring to an unlimited use license. The idea being (with the formula) that if your idea is good enough that every one of your competitors wants to use it, then they will effectively pay you for the full cost of discovery/development (at industry average R&D costs).

So at $10 per patent, you'd pay $2.5 mil as a one-time fee. I'm curious how that would stack up to current litigation and other legal costs to fight/prevent patent litigation.

If an unlimited use license is $10, it's not worth the patent owner's time to write a letter asking for the license fee.

My impression is that many of the ideas covered by software patents are independently "discovered" by each entity that happens to use them. The patent is now inhibiting innovation by dwelling on an old idea that is apparently not so novel after all.

> If an unlimited use license is $10, it's not worth the patent owner's time to write a letter asking for the license fee.

I guess that's kind of the point.

Patents only inhibit innovation when they can be used as a cudgel to force inventors into paying exorbitant fees. If fees are inversely proportional to the proliferation of patents in an area, the natural incentive is to only patent that which is important.

> Originally, patents were supposed to encourage idea sharing.

The original idea of Marxist communism was very humanitarian in its intentions. We know how dictatorial it turned out when it was implemented. Good political theories that turn bad typically didn't take all parameters of reality into consideration. They're utopias.

Arguably the US was much closer to Communism than Russia in the 50-60's. Unions effectively controlled the means of production through conflict 'strikes + other means' and redistributed more than the fair market value of their labor to the workers over the long term. Russia on the other hand was a de facto feudal system, with the party sharing power and privilege to a few at the expense of the peasants.


Not to mention the 91% top income tax bracket.

Well no, the "class struggle" and "armed takeover of power by the proletariat" is the core of Marxism, not quite so peaceful. But this is irrelevant to the topic.

You don't have to be a pacifist or a doormat to be a humanitarian.

Patents were initially devised to let inventors to recoup their R&D expenses by giving them exclusivity on the market. And this - the R&D expense - should really be a defining factor in whether or not something is patentable.

This way a 5 minute brain fart by a recent graduate won't be patentable, but a clever optimization technique that stems from several man-month of testing on a cluster of Crays will be.

That would tax an efficient use of resources. Its the innovative idea in the patent that should matter, not how much money you spent on figuring in out. Some might take less time and resources to figure out the same thing and basing everything on R&D expenses makes it completely unfair to them.

But why grant software patents at all?

Software is already protected with copyrights as literary works. Copyright protection is not as broad as patent protection. It doesn't prevent competitors from writing a program with similar features but different source code, but it does protect against competitors copying the source code.

All patents are granted copyright protection in this sense. After all, they are filed on paper and both the process and implementation are reducible to such. To give an example, chemical process patents are among the oldest and most venerable kinds of patents in existence and are essentially equivalent to computer algorithm patents (except involving molecules instead of bits).

A new algorithm for efficiently producing a particular chemical is protected by patents. The implementation of that algorithm, such as in a chemical manufacturing plant, is protected by copyright. There are an infinite number of ways the abstract process can be reduced to practice, all of which are copyrightable.

In practice, the implementation copyright and the process patent are separately valuable, are often sold separately, and protect different people. The patent protects the effort of the individual who developed the chemical process. The copyright protects the effort of the engineer who designed a way to efficiently uses that chemical process.

> That's probably all it's worth.

Although probably not, unless the parent has all the code needed to implement whatever the patent covers in the language I'm using and correctly following the conventions and patterns of the language and platform.

That could be worth $10.

Would you pay somebody $10 for a blogpost like that?

There's a bunch of those around. Most don't even have ads or any revenue stream other than infamy.

"If you own a software patent, you should feel bad." You might think its "just for defense" and have the best of intentions, but like landmines and toxic waste, the patent will almost certainly outlive your use for it and wind up in hands other than your own.

So there it is: Patents are like the toxic waste of innovation. You promise yourself to keep them safely contained, but its hard to do in the real world and once they spill, they contaminate everything around them, making the ground uninhabitable for 20 odd years.

Feel bad.

I think that a better analogy is thinking of patents as nuclear weapons. What we need at this point is a disarmament treaty.

Presumably there's some kind of legal construct that could act as a poison pill. i.e. some kind of contract that says "if this patent is used for [insert evil purposes here], it is immediately converted to GPL."

Also, I refuse to lump defensive patent holders in with organizations like shell-corporation patent trolls or Intellectual Ventures. From what I can tell, IV isn't even bothering to try and execute on ideas they come up with. They simply brainstorm, apply for the patent based on the idea vapors, and then go after anyone who is putting in the blood and sweat to try and actually build it.

What about a patent under something like Twitter's Innovator's Patent Agreement?


Common sense speaking. Patents are indefensible nonsense.

That said, I think the point he raises is interesting. There are some ideas which are entirely algorithmic and are hard.

Specifically complex technical standards like video compression and encoding, machine vision, wireless signal processing, etc.

These are things that require a significant capital outlay to invest in research to solve the problem, but once it's solved... well, someone else can clone the logic and make a free version. So you patent the process.

If you dont, you cant guarantee a return on investment in the project, and thus you dont get investment in the project, and ultimately the problem doesn't get solved.

Its an interesting thought experiment, and it makes for a good argument for patents existing. ...but then, where do you draw the line between "complex and costly" and "stupid and trivial".

It's an argument I've heard a lot; I think it's nonsense too, but it convinces a lot of people. It'd be interesting to see a thoughtful critique of that argument, rather than the 'stupid patents are bad' argument, which, basically everyone already agrees on.

> If you dont, you cant guarantee a return on investment in the project, and thus you dont get investment in the project, and ultimately the problem doesn't get solved.

Well, it doesn't get solved by for-profit actors as a way to make money.

But it can get solved by government-sponsored research. You can look at patents as a complicated tax system intended to fund innovation. We might be better off just making it an actual tax system that funds education.

It can also get solved by foundations, or by for-profit actors working in non-profit-seeking ways. Linux is a great example of innovation in that model. Industry consortia are an interesting model, as is something like Underwriters Laboratories.

In such cases, you try to convince people to pay for your idea up front. Depending on how revolutionary/badly needed this idea is, it will get funded.

Kickstarter and clones are the answer.

If you can already prove the idea isn't nonsense then there is no need to fund the R&D. If you can't prove the idea isn't nonsense, no one will fund you. Research tends to be either self-funded or backed by funding organizations that specialize in evaluating high-risk R&D projects.

Even among the organizations that specialize in it, there is a problem that there are only a handful of people in the world that can even begin to evaluate the potential of a proposal. And in those cases, the people doing the vetting do not fully understand it, but they are the best outside experts capable of detecting any subtle red flags that suggests it will fail. This is the normal state of affairs for advanced research; no normal person could hope to evaluate advanced research.

Kickstarter type models would be poor for funding most types of serious research. Leaving this to popularity contests like Kickstarter is a recipe for a lot of clowns and wannabes with good PR getting funded in the absence of serious (and expensive) diligence and serious research being ignored because it can't be wrapped into a shiny soundbite that everyone understands.

When your whole model revolves around it, the effort that goes into evaluating the prospects of serious research topics will perhaps undergo a massive change as well.

>That said, I think the point he raises is interesting. There are some ideas which are entirely algorithmic and are hard.

Clever and/or sophisticated perhaps but not hard. The hard parts are the mathematical foundations, done by mostly dead people who are not getting a penny out of it.

>If you hold a software patent you should feel bad about it.

The problem is that they are sunning their arse in the Bahamas and are feeling great about it.

An important point is that patents are not about having the idea first, but patenting the idea first.

History is littered with examples of people that failed to patent their invention only to be beaten over the head by someone that did. In a patent-happy society there's no room for innovators, only lawyers.

Patents, by function, are government granted monopolies over a idea or concept.

So, basically, the person that holds the patents is guaranteed to have the ability to sue anybody that infringes on the patents. This is backed up the ability of the government to inflict violence on anybody that infringes.

And what is happening is that the system is getting worse.

USA was unique in that it had a first-to-invent rule governing patents. That is if you are the first inventor of something you have the right to the patent even if somebody else pays off the government first.

However, soon it's going to be first-to-file. Meaning that even if you invented something first you can still infringe on a patent if somebody else is able to get to the patent office and pay them off first.

This will go into effect on March 16, 2013.

Now people will argue that this streamlines the system and makes it much easier to identify people that have the legal ownership of a particular patent and thus reduce fees and the expense of taking people to court....

But seeing how patents are generally terrible things then making something that is terrible better at being terrible is not really the sort of 'reform' that we should be looking forward to.

To help put into a bit more perspective in case anybody is doubting the wrong direction of the first-to-file reform...

Basically: "First to file" means that unless you are able to get your product to market and publish it before another person files on your invention then you lose your 'rights' to use your invention.

In business it is very very easy to invent something. People come up with new and useful ideas all the time, and create demos and sample products, etc etc. Inventing something isn't the problem. Actually developing it and turning into a profitable product is the really difficult problem.

In other words: The act of taking the idea to fruition is the issue here. Inventing new things just happens as a matter of course.

Now in business the reason you will have a long time lag from invention, prototype, and then into production is lack of capital. It's extremely expensive process and you must have significant ability, credit, and resources to take something to public in a meaningful way. This means you either must sell your idea to 'big corp' or spend a huge amount of time, probably years, painfully making your case to various creditors and working a business up from scratch.

Now the people that don't have this problem are obviously 'Big Corp'. They have lots of money and lots of resources so raising capital isn't a problem for them. Hiring lots of engineers and lots of lawyers to scrutinize the engineer's activity and then file patents on behalf of 'Big corp' isn't a problem either.

Therefore 'first to file' as a matter of course will eliminate the competitiveness of 'individual inventors' and place pretty much all the market advantages granted by the patent system into the hands of massive corporations.

In the old "first to invent" system, BigCorp can make up document of having invent the things first, too. The only different is, with first-to-file, the "filing record" is public, as opposed to the "inventing record" which does not have to be published.

Also, first-to-file means that the sooner they file the patent, the sooner it'll expires. With first-to-invent BigCorp can claim to invent something for ten years and not file for patent, effectively makes their patent lasts "17 plus how many year they keep it secret without filing".

BigCorp will always have more resource than individual inventors, the different is first-to-file system forces everything to be put in public record.

I'm sure people will be patenting the hell out of anything and everything at that point in time. They'll be paying interns to scour through dusty old computer science papers, publications, even textbooks for anything that hasn't been nailed down and patented.

I'm sure there's people in a certain part of Texas that couldn't be happier.

For the rest of us it sounds like an unending hell. It's like malaria in lawsuit form.

Yes. Theoretically 'first to file' still yields to 'first to publish'. But as I explained in my reply to my own post above this still means that it puts massive advantages into the hands of large corporate players at the expense of everybody else.

Technically yes, in practice it strengthens prior art - you have to file it BEFORE any someone makes demos or product samples as that would invalidate patent. At least that will slightly improve patent situation in US.

If by slightly, you mean that like throwing water on a blazing grease fire there's this surprisingly brief interval where it looks like it's working. Then everything in the kitchen catches on fire, including you.

>However, soon it's going to be first-to-file. Meaning that even if you invented something first you can still infringe on a patent if somebody else is able to get to the patent office and pay them off first. //

This is how it is in the rest of the world.

If patents are about giving information about inventions to the public domain in exchange for a limited time monopoly; which is the best form IMO. Then it is right to put pressure on inventors to either publish their inventions or patent them, their choice. If you find the invention valuable then you can patent it - submit a minimum sufficient disclosure to get a filing date and go on from there. If the invention is not so valuable or you want to merely protect from others filing then you can simply publish the invention.

The whole idea is to get new inventions published as soon as possible with enough detail to enable skilled practitioners to recreate the invention.

In the UK it is free to file an application; but you need to pay to get it processed, searched and examined.

WRT your last argument are you saying that you'd rather that patents take up more court time and attract more legal expenses (which ultimately get paid by consumers)?

> I’m not sure it’s good for society that some professions can get paid over and over long after they did the work (say, in the case of a game developer), whereas others need to perform the job over and over to get paid (say, in the case of a hairdresser or a lawyer).

Not sure I agree with this point. All professions are different, some make their money long term by providing value and gaining experience, some make their money by just doing work and some make their money by providing a product over time.

A (good) hairdresser for example makes their money because of reputation, if they do great work for customers they can charge more, therefore their previous work does matter, just in a different way. An actual example of people that get no long term value from the work they do are retail workers: a shelf stacker doesn't get a "better" shelf stacking job stacking "better" things if they can stack shelves well.

If people support the idea that content creators don't "deserve" to make money long term then content creators will just go further down the Steam / EA route: don't provide a product, provide that product as a service. Instead of purchasing a copy of a game, you rent access to it on a service which can be revoked at any time and is 100% controlled by the issuing company. This is what Steam is...

This is also an argument against capitalists or any sort of investment, really.

I think that whilst notch has raised some valid points, he has really written an argument based on half the picture. I believe that maybe notch should read up more on criteria of patentability, other patent areas, and the feasibility of having everything 'funded by government' and perhaps share some of that too.

I agree that something like a software patent may be a bad idea, but you have to realise that a lot of people read your stuff and get influenced by this 'half of the patent picture' and then leave with the wrong idea and start criticising legitimate patent areas.

For example: Company A spends $200M of investors money finding a new anti-depressant. Ok so they invested all of this money, now they need to spend 8 years proving to the FDA that it is safe to use, there goes another $300M. 'Generic pharmacies inc' says hey, thanks for doing all that work, now we can manufacture that drug in our factory for 1c/pill and make a little bit of money, good luck recouping your research money because we just got all the cheap sales. Company A goes bankrupt, the investors lose their money. Company B and C notice this industry is poor for research, and decide never to spend that money finding an anti brain-tumor agent.

However, if company A had patented their idea, then they will have around 10-15 years of patent-protected time (because they have to patent before divulging it, and by the time you get through trials and approval you can often have just a few years left) to sell their drug at a price where they can recoup their $500M, and invest in more bigger and better research. Meanwhile, whilst patented, other companies can see that research and build upon it with their own research - they just cant rip them off with the money they are owed in that time by selling it without permission. If they really want to sell it, they can ask the company to license it to them, and pay royalties. Later, the patent expires, as all of them do, and then generic company is free to manufacture it without paying the inventor a cent.

Is this not a valid reason for patents? I'm sorry notch but you cant copyright a pill, even though that copyright law may protect your own interests (minecraft)

This is a mind-bogglingly simplistic and broken argument against patents. The main argument is by analogy and argument is patents suck because they prevent the sharing of ideas. These are both horrible ways to argue against the patent system. I guess it's garnered a large number of upvotes because of the author?

Those aren't analogies, they're examples, and software patents are almost exactly patents on ideas, not inventions.

"Although the invention has been described by way of examples of preferred embodiments, it is to be understood that various other adaptations and modifications can be made within the spirit and scope of the invention."

Good luck with that when the only invention actually described is a "system" that embodies the ideas described in the claims.

Debating whether patents are good without differentiating on industries seems wrong to me. I've been involved in investments in pharmaceutical companies and investments in IT companies. Those are two completely different worlds.

In the pharmaceutical world founders and employees more often have large opportunity costs by starting or joining a new venture. They are usually in their 30s or 40s with huge student loans, mortgage and kids. They forgo high incomes if they join a start-up. The road to the market is much longer (often more than 10 years). Investment in machinery is also at a completely different level. Drug development usually entails million dollar investment in specialized equipment. Perhaps the most costly aspect of drug development is the regulatory obstacles, such as getting approvals.

In contrast, IT companies are cheap. Founders often have little formal education (Microsoft, Facebook, Skype) and the road to market is much shorter. IT start-ups expect customers (or at least users) in a matter of weeks or months. Many IT companies can get to proof of concept with almost no investment in equipment. The founders simply bring their laptops on board). Regulatory concerns, if any, can usually be dealt with by one lawyer in a few days.

I cannot imagine anyone investing hundreds of millions of dollars in drug development over the course of 10 years without some assurance that competitors can't "steal" their idea. Usually that assurance is a patent or a trade secret. But keeping secrets over 10 years with employees coming and going - that's difficult.

tl;dr: Once you have an idea about, say a shopping cart in a web store, it can be implemented in a few man-weeks. Turning an idea about a new drug into a product often takes thousands of man-years. Whereas the institution of patents seems harmful in the world of software development, it may be necessary in the world drug development.

Of course the flip side is that if a drug is not patentable then research stops. More effective drugs are replaced with slightly modified, possibly less effective or more dangerous, and definitely shorter track record drugs just to preserve profit margins. If natural compounds are more effective in treating some condition, today's pharmaceutical industry will do all they can to avoid discovering that.

Sure drugs are expensive to development, but I'm not sure that the twisted system of incentives is beneficial overall. Of course the industry will claim that none of this research would happen without patents, but of course they are set up that way and can't imagine it any other way. I doubt that humanity as a whole would simply stop advanced medical research because the economics changed.

This is nonsense. Even for "natural compounds", phase 3 clinical trials are necessary to prove efficacy. These trials cost hundreds of millions of dollars. Nobody is going to put up that kind of money unless there's profit in it, period.

Oh yeah, also: most phase 3 trials fail.

>Nobody is going to put up that kind of money unless there's profit in it, period.

I don't know what kind of fantasy world you are living in but there are plenty of governments and charities who fund scientific and medical research without the goal of profit.

The research is inexpensive, the development is not. Having the government do the inexpensive part -- the research -- does not eliminate the extremely expensive development. Almost all the cost of new pharmaceuticals is in the development phase. Government funding research is a drop in the bucket after private companies fund the clinical trials.

While government has an okay track record funding research, they have a pretty poor track record funding development, hence why it is left to private companies. This has to do with the way governments legally structure funding combined with the fact that development cycles are much longer than political cycles. In areas where the government does fund development, the development is interrupted by constantly shifting funding priorities and politicians trying to redirect money to their districts or constituents in the middle of development. This tends to make things cost (at least) twice as much and take (at least) twice as long as they would in environments where the development cycle is guaranteed to be uninterrupted and free from the whims of whoever is elected this year.

Sure they fund research, but how many of these governments and charities actually work on the final end product.

The research they are doing is generally not in the final phase of actual development of the drug which is where it gets incredibly expensive.

I don't know.

The interesting thing is that, from: http://www.techdirt.com/articles/20070927/012604.shtml

>A recent GAO study found this to be a worrisome trend, noting that fewer new innovative drugs are being created -- with pharma firms instead focusing on ways to extend the patent protection on existing products by pulling a few tricks (such as "reinventing" Claritan as Clarinex just to get more patent coverage).

In other words, government funded or not, patents are stifling medical innovation.

> I doubt that humanity as a whole would simply stop advanced medical research because the economics changed.

It wouldn't stop but it would definitely decrease significantly. The fact is that many countries are implementing carbon tax/ETS specifically to make the economics more favourable to renewable research and development. So economics matters.

I do not think that the whole patent issue is one of scale. It's one of principle. Nothing and no one should be allowed to own ideas, formulas, algorithms, genes or molecular arrangements.

Besides - and I've argued this countless times in the past - most medical research is already funded by the government. So it's not like innovations in medicine would suddenly grind to a halt. Maybe we'd see less useless shit like the newest "Anti-Aging" creme or other complete wastes of money.

Here's another fun fact: only about 15% of the income of the big pharma concerns actually goes into research. Most of it goes to advertisement. How in all hell is that a good use of money?

Furthermore, this system incentivices the utterly wrong things, and this remains my strongest argument against patents especially in pharma. You aren't encouraged to find cures, things that stop the cause of a sickness. The most profitable way is to find treatments for symptoms, which bind the patient to your meds, often for a long time, possibly until death. The best example would quite likely be AIDS. This is nothing less than completely, totally, absolutely, irredeemably and unexcusably fucked up.

> Founders often have little formal education.

This sounds ridiculous. Most founders I've seen had degrees.

And for the three companies you listed. Gates and Zuckerberg both went to Harvard but dropped out. And Zennström had an MBA and Masters of Engineering/Computer Science.

Gates and Zuckerberg dropped out of college. Skype's other half, Friis, dropped out of highschool.

The point is that IT founders and employees in average have shorter education than founders of pharmaceutical companies. I think it's a fact that is hard to argue against, whether or not you find it ridiculous.

I am not saying they are less smart, just that they usually have less formal education.

That is because IT is more on the side of 'art' and 'open creativity' than pharmaceuticals which require a lot of background knowledge, far more rigorous testing and standards, and are a much more deadly legal minefield. Both require technical skills in a way, though alot of the pharmaceutical founders barely spend any time in the actual lab. Not to mention the average cost in R&D to launch ONE pharmaceutical product is $500M, meaning you need business skill. (And a patent to earn back your research money!)

To quote robomartin (http://news.ycombinator.com/item?id=4275361): "I am not against patents. I am against the granting of patents for non-inventions."

The main problem IMHO is the cultural definition of "obviousness" among patent examiners. They seem to think

a) that (in practice) all meaningful prior art is patented so all they have to do to find it is search their patent databases and

b) the slightest difference between prior art and a new "invention" makes the "invention" non-obvious.

IMHO prior art should be whatever you can find in library and (more importantly) on the Internet. The test should be that the difference is non-obvious "to a person skilled in the art", i.e. the inventive step itself has to be non-obvious.

From the patent examiner AMA on reddit, and from comments that patent law professionals have made here, it seems that those involved with patents are a bit out of touch with the reality for software professionals.

The patent database is a tool, it's not reality. The way that patents are written and treated is also out of touch with reality.

Exactly. If it can be proven that an alleged infringer actually came up with the same idea independently, that should demonstrate that the idea is not non-obvious and therefore the patent is invalid.

I can't remember a single case of patenting improving consumer experience in the modern era.

The way I see it, patents are designed to improve capitalist behaviour, once where your ideas are protected: the march towards innovation is strictly optional.

It's time instead to consider how dependent our world is on iterative practices. Everything we build on and upon is no longer unique: it's all inspired, and improved.

Jim Jarmusch said this once:

>Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows.

To embrace iteration, we need to get rid of patents. That much is certain.

You don't know what may have never existed with no patents. Maybe Jobs doesn't even consider the iPhone. This sort of thing is just speculative without a control.

Dyson Vacuum Cleaners.

One sole inventor who developed 5,127+ prototype designs and clearly brought something unique to the marketplace. Gave his whole life and money to the product.

Almost immediately after it came out Hoover copied the design and basically would have put him out of business.

The patents were the ONLY thing that protected him from a huge multinational who didn't invent anything.

Now Dyson went on to invent a whole range of very cool gadgets which never would have existed without patents.

Interestingly, the Dyson design was based on an existing cyclone system widely used to separate out dust and particles in industrial settings. The innovation was using the process in a domestic vacuum cleaner.

So it's not too far removed from the "thing-that-already-exists but on the internet" patents which are a large part of the problem, or the "thing-that-already-exists but on a mobile" patent which is biting Notch's ass at the moment.

Not that I'm saying Dyson's patents are invalid, nor that his designs haven't improved the state of the art in several fields, but he didn't invent the cyclone technology in a... vacuum.

> If you own a software patent, you should feel bad.

I have several (although all of them are "owned" by my former employers). We filed them not to attack, but to defend. I hate software patents but I don't feel bad for having them.

Will you feel bad if one of your former employers goes out of business and the patents are bought up by someone else who will use them to attack, not defend?

Fair point. But somehow, if you're employed, you don't own your inventions: your company does. Your company's policy is sadly not taking your beliefs in account… and if they sue people using your invention, you can't complain.

So basically, you'd have to make the difference between personally owning a patent (in which case you do whatever you want with it) and inventing something for your company (in which case you can't control it).

Congratulations. That means you basically worked for a company that manufactured land mines.

Explain yourself.

I don't see any reason to not own patents in order to protect your work from being patent trolled.

Let's say you invent the novel. Right? You don't patent it because you think patents kill babies. Then I act fast enough and quickly patent the novel, because no one did so before. I did it quickly enough to make it unclear who was first. Then I sue your company for copyright infringment.

Yeah, that means I'm an asshole. Doesn't matter, I'm rich now. That's why you should patent you ideas, even if you don't mind other people using them.

> I don't see any reason to not own patents in order to protect your work from being patent trolled.

Patents last a long time. Longer, sadly, than many companies. A good-faith company that owns several patents has no control over those "assets of the company" if they go out of business. If those patents end up in the hands of patent trolls there is nothing that the good faith company (or the ex-employees) can do.

Your novel analogy shows just how broken the patent system is.

Perhaps here is a simple and effective minimizer to the evils of patents: make them non-transferrable. The original legal person (natural person or corporation) that was granted the patent holds it until expiration or death/dissolution/acquisition. Fewer patent trolls could operate if there are no patent transfers.

>Then I act fast enough and quickly patent the novel, because no one did so before.

This is incorrect. Prior art would invalidate the patent, since someone is already selling novels--patents have to be novel(no pun intended). You can't patent the idea just because it hasn't been patented already.

If you don't mind other people using your idea, all you have to do is establish prior art by releasing it to the public, either by selling it or publishing it, to prevent anyone else from patenting it.

If you want to make doubly sure the patent office actually finds your prior art when doing a prior art search after someone else applies for a similar patent, you can file and abandon the patent by failing to pay the fees.

In practice, novelty is determined by prior patents because that is what the examiners search.

"Yes, for the patent definition of obvious, basically all the parts are going to have to be either patented, or in some printed publication." -- Patent Examiner "lordnecro" (http://www.reddit.com/r/Android/comments/ww982/iama_patent_e...)

See the rest of the thread for the example where an idea is used in open source software prior to a patent application by a third party. The patent examiner concedes that this would likely not be found by the examiner, therefore the patent would be granted. It likely would not stand up in court, but that doesn't help anyone that can't afford the legal defense.

Did you skip the part where I said to ensure the examiner finds it you can file and then abandon?

You still have to prepare the application and pay some fees. http://www.uspto.gov/web/offices/ac/qs/ope/fee092611.htm

If a doubly-linked list is patentable, how many things have you built this month that are also patentable? Do you really have time to write all those bogus patent applications? In academia, it's a much better use of time to publish scientific papers, present at conferences, and put it in open source software. Industry has market-driven motivations.

It has been said before, there is a huge gap between the prototype and the product that will be sold. That means that a company powerful enough will be able to sell/patent your invention faster than you do if they can lay their hands on the prototype. You'll be screwed, and there's nothing you'll be able to do about it.

This is just ridiculous. I'm not a fan of most patents, but you don't need to invent a bigcorp bogeyman. You seem to be deteremined to believe that bigcorp can completely screw you regardless of the evidence.

Commercial products are often different than the prototype. However, if it uses the same basic innovation, it's generally not going to be so different that the patent doesn't protect it. Patent protection is generally pretty broad.

If the final product doesn't actually use the novel innovation demonstrated by the prototype what advantage does the prototype offer bigcorp?

For example I invent a screwdriver that can work with any screw without a bit change, and I make the handle from rubber, I then file for a patent and am granted it.

Bigcorp comes along and decides to file a patent for the same thing, but for the production version that uses injection molded plastic instead of rubber.

The patent office will reject bigcorp's patent.

That's a really poor metaphor.

It's more a like a nuclear arms race. We focus on mutually assured destruction if you come after us. Keeps the checks and balances in place and stops random invaders and gets us respect.

The problem we face is the terrorists getting arms themselves (the patent trolls) and attacking us with nothing to lose.

Sure it would be awesome if we had no arms and I would support disarmament but it needs to all happen at once by everyone. Until then, we have to play the game.

I've used the nuclear arms comparison before, but I've decided land mines are a better metaphor. Nuclear arms, in the view of some including myself, have (so far) proven to be a net good thing. They have forced world leaders to grow up and learn to get along with each other. They have cost us trillions of dollars to design, build, stockpile, and maintain, but if the MAD doctrine has in fact forestalled WWIII, its value is beyond any price. Not everyone agrees, of course, and that's reasonable, but still, you can't argue with the outcome of nuclear deterrence thus far.

Land mines, on the other hand, kill people who have no idea what they're stepping on. They are cheap, ugly, technically-uninteresting things, often resold on illegitimate markets and used by everyone from superpowers to tin-pot psychopaths.

Instead of preventing wars, or at least forcing adversaries into negotiations for their own self-preservation, land mines kill innocents and belligerents alike. And when they do kill innocent people, it happens years, even decades, after the mines were planted. They kill long after the initial conflict is over, when its outcome is no longer "innovative."

So IMHO, comparing patents to nuclear weapons is an insult to nuclear weapons.

(Edit: your metaphor fails on another level, as does mine. If I start a nuclear war or plant a land mine that kills a non-combatant, nobody will ever consider me a hero. But kids are brought up to respect "inventors" and the patent process. We literally celebrate people who bushwhack the productive and industrious. That's fucked up.)

Ideally this could be done under a system where the company gives away the right to use the patent offensively unless the inventors agree. That way hopefully the patents won't end up being used in different ways if the company is bought out later.

I've thought about that, but the problem is, such an encumbrance would zero out the value of the patent. Your employer wants you to file patents not because they make their products more valuable, but because they make the company more valuable.

A possible compromise might be joint ownership of patents. Maybe that's what you had in mind? Under an arrangement like that, the engineer wouldn't have the right to stop his employer or a future owner of the patent from suing people, but he would have the ability to license the patent rights himself.

I like this idea because it leaves the value judgment to me. If I don't agree that the cause is just, I can stop any offensive legal action simply by offering to license the IP to the defendant for $1. If I work for Google and they want to get into some kind of galactic pissing contest with Apple, they can knock themselves out for all I care. But if my patent ends up the hands of Uniloc, Acacia, or that Myhrvold asshole, I can shut them down.

Co-ownership of patents would still devalue the IP substantially, but that might be ameliorated if I agree in advance not to license the rights to anyone who has initiated any other legal action against the patent holder. That would help maintain the patent's defensive value. It could still be used in a FRAND licensing pool, for instance.

It would devalue them, but this doesn't matter if you are truly only registering for defensive purposes. If you are then selling your portfolio 10 years down the track for massive money, they weren't really defensive were they.

> I would personally prefer it to have those be government funded (like with CERN or NASA) and patent free as opposed to what’s happening with medicine <cut>

I have to vehemently disagree with this.

Copying ideas and making incremental improvements on existing inventions is the core of what makes technological progress possible. Even just plain 'ape-ing' ideas is vitally important to getting improvements available to the public. This works best in a decentralized environment. Fundamentally it is my contention that a 'wild west' scenario will yield faster and more meaningful human progress then a carefully regulated and regimented system.

Assuming this is true: Then the patent system, as flawed as it is, is still superior to what was popular before it... which was official government academies were scientists and inventors were effectively wards of the state. This is uncomfortably close to what you are advocating.

In that sort of system internal bureaucratic politics and 'administrative law' (which is a term meant to indicate rules-decided-by-committee) dictates the distribution of resources and activities of scientists rather then merit or actual need. I do not think that is a effective environment for the creation of innovation.

I say that it's more freedom that is needed, not less.

Innovation can and does bounce back and forth between the public and private sectors. The Internet started life as a government-funded project before blossoming into the ultimate decentralized infrastructure.

public sector vs private sector metaphors are mostly nonsense. It's nice to say 'public sector' or 'publicly owned', but in reality the words and definitions are a creation of orwellian-style double speak. It's propaganda.

Institutions like NASA or any other government institution is owned and controlled just as much as IBM or Microsoft. They are all a for-profit institution simply because the people working and running them are in it for themselves.

Democracy seems like it would allow another means of control for the 'public' over the 'public institutions', but was easily nullified by the bi-partisan system. Effectively this country is controlled through two major political dynasties since just about the beginning. And these political dynasties are not driven by ideological differences, they exist for using political means to provide economic benefit for themselves. Democracy can only work on small scales; in city-states were they cannot control population movement. At the small scale governments are easily controlled by their tax base. On a large scale they cannot.

That is to say nobody works for free. Everybody works for profit, otherwise there is no point in working and no point in participating in the institutions in the first place. And a organization is nothing but a body of participating individuals.

The major difference is that government institutions are able to use the political means, that is violence, to get the funding and resources they desire. Where as a 'private' corporation either has to go through the government to get access to the political means or obtain what they want through economic means in the market place.

Ultimately when you say 'public sector' versus 'private sector' you are saying 'people that work for profit that you are required to pay by law' versus 'people that work for profit that can only obtain funding through the market'.

Unfortunately the government is intertwined very very deeply into the economic system of this country. When you get to the large corporations the distinction between government and private corporations is _very_ blurred.

I'm aware that public/private "sectors" are leaky abstractions, and that corporations and the federal government are deeply intertwined in practice. My core point was that tax-funded entities like NASA and DARPA can sometimes set the stage for later independent innovation in the marketplace.

I dislike ideological, knee-jerk reactions of [governments/corporations] are [always/never] [good/bad]. If there is a distinction to be made, it is between large orgs, small orgs, and individuals, and even then, those distinctions should be seen in the light of trading off strengths and weaknesses, with the possibility of statistical outliers.

Regardless of how one feels about the ideal of software patents, the implementation leaves huge amounts to be desired with vague and obvious patents granted every day.

Imagine if every time a patent was invalidated by the defence at trial, the patent office itself was ordered to pay defence costs.

As one of the few government profit centers, I think you would suddenly find a big improvement in the standard of patents granted.

That's nice in theory. In the "real world" it would never work.

The patent office would be too scared to actually award patents and even if they did the due diligence they would do would take ages. During which time copycats could come in and copy the invention. You may as well abolish patents altogether.

A better solution is to punish those companies who are defeated at trial and then strip them of the patents to prevent future lawsuits.

You may be right about the patent office, and that would be OK by me. But for those who say that only some patents are a problem, it leaves open a nice incentive to make that distinction real. All it means is that the USPTO suffer for their own errors of judgement rather that foisting that suffering onto others.

If instead you punish those defeated at trial, there are many who say that this is unfair to small players who cannot afford to make as strong a case as the really rich companies. I personally don't see this as such a great problem as they should be doing something more constructive than filing lawsuits, but I think holding the patent office accountable does not favour large players to the same degree.

If your patent were granted, you'd still retroactively be covered from the date of filing. Go back and sue the copycats.

Your "real world" solution does nothing. Patent trolls are rapidly becoming the worst part of the current system. They have no assets, and a handful of patents.

What penalties, exactly, can you impose on a shell company with no assets?

gsb's proposed solution may not be perfect, but it's clearly superior to the mess we have now.

Let's stop for a moment boys and girls to fix one recurring theme in some of these blog posts and discussions: You are not supposed to be able to patent ideas. There's a reduction to practice requirement.

Sadly, I must say that there are tons of patents out there that are nothing more than ideas or concepts turned into patents. I've run into lots of them in the hundreds of patents I must have read over the years. They fact that they are or were mere ideas becomes a glaring reality when you look into actually implementing the patent and discover that nothing works as advertised.

This is another sad failing of the USPTO: While the rules of the game say that ideas are not patentable, in reality, they are. So, yes, I contradict my first statement. I still prefer to speak with more precision when it comes to patents and not say things like "patent you idea" or "people like to file patents to protect their ideas". You are not supposed to be able to do that.

Wow, so the plaintiffs have a patent on checking with a server to determine if your software is licensed.

"devices that require communication with a server to perform a license check to prevent the unauthorized use of said application, including, but not limited to, Mindcraft."

The patent is a little bit more complex than that.

But yes, it appears to be a "thing that exists, but with online stuff added". This form of tweaking, taking an existing idea and adding a trivial modification and being able to get a patent is harmful.

"But there is no way in hell you can convince me that it’s beneficial for society to not share ideas."

Sorry, but Notch has it backwards. Patents are designed to for sharing - not for preventing sharing. (Patent holder shares information on how they implemented something in exchange for being granted temporary rights to deliver on the method implementation.)

I know I'm being naively simplistic in that statement. Yet so is Notch in his analogy. I've found no one who claims that "it's beneficial for society to not share ideas". Setting up a straw man makes for juicy debate, but not great argument.

Patents are not (should not) be about ideas. Patents are about inventions you make and want to licence or exploit by your own. They define the invention so that your clients or yourself are protected from copycats. It is very close to copyright protection where trinity gets tazed for copying the novel. It make sense.

The problem is patenting the concept of a novel. This is really questionnable. How much inventive is that ? This is where the line is fuzzy to set.

I don't think patents OR copyrights are moral. You shouldn't have the ability to stop people from using ideas in their mind (which belongs to them) even if you were the one who came up with the idea originally and put it into their mind. Other people's brains don't belong to you, neither does their equipment for making books, games, movies, music, medicine or anything else. If they can make it, why the hell should you be able to stop them from using their hands and their property to turn out exact duplicates of your own creations?

By the way Notch, I disagree with you on the government research thing. Government is terrible at just about everything. Instead, vital research should be done by the free market, but without the protection of patents or copyrights, as anyone who owns either is automatically a troll.

In a decade or three we'll be able to ask a computer to invent medicines and technology on the spot, so why should we let one person dominate something that is going to be so easy to discover and produce in such a short amount of time?

>you want to profit from all novels that are ever written //

Patents are time limited so that's out.

If Trinity, nor anyone else had seen your novel (as described in full in the patent application he fails to mention that he submits - this is key as copyright is an automatic right but patents are not) would they have come up with the idea?

If they would then why hadn't they?

How long would it have taken them to come up with the idea? More than 20 years?

Suppose the idea of a novel was so revolutionary that it never would have been created by anyone else ... is it worth a monopoly on the idea for 20 years to ensure that you open up that idea and share it with society for the rest of time?

Trinity of course can research your idea freely. She can use your idea. Indeed when she does use it privately she has an idea, based on yours, of a trilogy. Now, you're kicking yourself, Neo, wondering why you didn't think of that. Of course if Neo hadn't submitted his patent application in the first place then she never would have had the details on which to build her idea ...

> If you own a software patent, you should feel bad.

You should feel bad if you enforce it.

Practically speaking, if I hadn't had a patent granted while I was doing my first startup, I would've never gotten the acquisition valuation I got. It's a part of the game, you just have to have an "IP." Do I think this is retarded? Sure. Do I feel bad that I got a patent? No.

But the value of the patent comes out of someone potentially enforcing it at some point. Would you feel bad if the buyers of your startup enforced the patent or sold it to a patent troll?

There's also a deterrence value in patents, what's called a defensive patent portfolio. If someone were to sue you, you would sue back and that, presumably, stops them from making a move.

A patent making its way to a patent troll is certainly not a good thing, but being an unlikely event it needs to weighed against the benefits of having a patent.

With regards to the buyers enforcing the patent, this is easily handled by obtaining their commitment to use my patents only in a defensive capacity. In my case I didn't have to get an explicit commitment, because I knew the company and its internal ethics well, but in a more general case it's really not a show stopper.

I agree wholeheartedly with your sentiment but call foul your pejorative use of the word "retarded". It's just too easy not to compare bad things to "other" groups. English is a great and vast language; show some respect.

Do suggest alternatives. I am not a native speaker.

Sorry for incorrectly presuming you used it knowingly. The word "retarded" as it is commonly used in modern colloquial English originates with its use to describe people with mental disabilities of one form or another: they were at one time classified broadly as "mentally retarded". That was gradually abbreviated as "retarded", which has gradually been used as an insulting term for all manner of things (including but by no means limited to humans).

Get of your high horse, will ya. We all know what he meant by "retarded". This pedantic nitpicking does nothing but sidetrack the discussion.

I know what the word means. I also know its slang meaning, which you appear to be ignoring. Now, please do suggest an alternative that carries the same expressive load in a similarly succulent manner, but without being "offensive to other groups".

I am not ignoring its slang meaning -- it's that meaning that I am saying is unnecessary. I think using slang that derives from segregating concepts is damaging to society. I'm not on a high horse, I just think most people aren't conscious of it and it's worth thinking about and pointing out. An alternative would be anything that conveys what you're really trying to convey without using such terms. "Asinine" is a good one because it conveys intent as well as ineptitude. And frankly I think it's more biting than "retarded" which comes across as a cheap shot. Hope my comments are of some value. I mean well.

"Fucking dumb" - Dumb meaning very stupid. "Very fucking stupid" has a bunch of syllables to help release those energies too, if that's what you're going after / feel you need.

"Dumb" actually has the same problem as "retarded". We are just not as concerned about the politically incorrect implications to the group of people which are unable to speak.

Indeed. The verb of dumb is "Simplify or reduce the intellectual content of something so as to make it accessible to a larger number of people;" Essentially turning something into layman's terms - layperson's terms?

Context that matters the most. Groups can either try to reclaim the word or start using new ones, which I believe many are doing.

succulent > succinct, perhaps?

Yes, patents suck. But talking will do nothing. We need to literally put our collective money where our mouthes are. I am only half joking, but somebody please run a Kickstarter campaign with the goal of reforming the patent system, I will gladly donate.

We need to lobby the sh_t out of our government. Start stuffing money in their pockets - this is the only thing the beast understands. Get them to phase out the patent system - that is, issue no new patents, wait for current patents to expire.

We also need to create an alliance of companies that agree to never sue each other over existing patents. We need to publicly shame companies (namely, patent trolls) that use patents solely for exploitation.

Yes, maybe these ideas are dumb or naive, but they would still be more effective than just talking about it...

Is funny how things work out: patents which are meant to stave off copycats from profiting off someone else's work end up being snatched by patent trolls who sue anyone who does something even remotely similar even if they had no idea there was a patent on it. Meanwhile copycats always find a loophole, they much like patent trolls hire the best lawyers to protect themselves and keep blatantly stealing from others, sometimes going as far as copying the logo and other minor details, showing they don't want to compete but to deceive consumers of the original to use the copy.

Either way the innovator gets shafted, specially when the patent troll or copycat is an even bigger company.

>The problem with this argument is that patents apply even if the infringer came up with the idea independently.

While I agree that our broken patent system is in dire need of reform, I'm not in favor of complete abolishment. That said, if an accused infringer claimed that she had come up with the idea independently I can't imagine a fair method of proving or disproving that. Hence, I don't see how one could make exceptions for independently developed ideas that aren't prior art.

Please, please, please do not hand the development of new drugs over to the government.

Also, if you're going to make an odd blanket statement that ends up being a lynchpin of your argument like "patents in software are trivial" at least try to unpack it or back it up somehow. Microsoft (for example, via MSR) dumps a sh ton of $ into research to come up with some ideas that end up being software, so how is that different than the biotech scenario?

I keep thinking that they should not allow companies to sue on patents unless the patent has been implemented in one of the company's products, currently in market. Exception of course being algorithmic patents - compression techniques etc., - These could be made FRAND. My comment is vaguely generic and there may be lots of exceptions but the first part would eliminate a lot of the patent trolls I keep hearing about.

Each time I see a patent related article on Hacker News, I'm thankful that software patents don't exist in Europe. That's at least one thing we got right.

To kill software patents, don't abstain from patenting software. Do the opposite. Flood the patent office with so many ridiculous and obvious software patents and clog up their system so bad, they'll be forced to deny all of them or just let applications sit pending for decades.

Honest question, if I have a software idea and am thinking about patenting it, but then don't (although I've developed the idea), what happens if someone else re-creates the idea and then patents it themselves. Would I now be infringing on their patent?

(Am not a lawyer, but am a tech entrepreneur whose job is to somewhat understand patent law:)

Yes, you would, in the USA. If you are not ever sued for infringing, nor asked to pay licensing fees by an agent of the patent holder, nothing happens and it's effectively moot. This is the most likely outcome.

If you are sued/asked to pay, you could try to invalidate the patent (or threaten that) because there is prior art... i.e. your implementation. You can only do that if you can prove that you implemented it, at a specific date sometime before the patent filing. This may not be easy. In fact - and ideally, there is a USPTO officer reading this who can comment - it may be the case that something can only be considered prior art if it's been published in a textbook, tech industry journal article, etc. (Or if there another existing patent for it).

Ideally your evidence is so strong, the patent holder will look at it and decide it's not worth taking you to court (i.e. they believe they will lose, or even risk getting their patent invalidated). Then they back away slowly from you, going after easier prey.

If you go to court for any reason, it's likely to be a long, hard drain on your energy, time and money.

Awesome, thanks for the reply. I'll take a look a bit deeper, but this really helps a lot.

If you publish it openly somewhere that a date can be clearly established, you can create prior art that might prevent someone else from getting a patent on it.

Be sure to cover as many of the minor, obvious generalizations or adaptations as you can.

This show called "This American Life" did a wonderful show on patents.


I feel obligated to link to my comment thread on this issue from earlier in the week: http://news.ycombinator.com/item?id=4263790

Ummm, you can't patent an idea. You patent an invention. The problem with software patents is that the 'invention' is pretty close to idea level.

Nonetheless you can't patent the idea of writing a long-form novel.

If you've had a look through even a handful of these patents people are getting sued for millions over, they're basically the equivalent of the long-form novel.

You could probably patent the idea of a "long click" meaning a particular type of action. Then you could go about suing someone that came up with the same idea independently.

> If you've had a look through even a handful of these patents people are getting sued for millions over, they're basically the equivalent of the long-form novel.

No. They're not. You say this because you, like everyone else, don't understand what the claims say. That's likely because they're written in legalese, and you're just trying your best to give those terms their plain English meaning. You can't do that. Many of them are terms of art, with very precise definitions crafted by the courts. As such, you have to look to various court opinions concerning claim construction (i.e., context) to understand their meaning.

You may disagree with that on principle, because everyone should be able to understand the subject matter taken removed from the public domain as a matter of law, and I'm somewhat inclined to agree. However, nothing precludes you from gaining such an understanding: there are many books written on patent law, and it's not too incredibly complex.

So ideas aren't worthless? Patents have value, and some patents are apparently merely expressions of ideas.

Ideas are worthless, that's what everyone likes to repeat.

I've raised the example before that ideas aren't worthless, for example patents have value but was criticised because "patents are not ideas, they are execution".

Notch seems to think patents are ideas. I don't know enough about patents to really draw a conclusion as to if they are expressions of ideas or executions of ideas.

Also, the example of writing your own similar book is quite a clumsy one for patent infringement.

I agree the example is clumsy because people will find it hard in that example to imagine why a novel is patentable (because it is obviously not in our world, ironically lacking the criteria of being "novel"!)

I felt like notch matured a while ago but this is a surprisingly childish rant from him, i honestly felt it was a bit below him. He has a point, a valid point, but he has not conveyed it very well, and has caused collatoral damage to other valid fields for patents in the process of criticizing software patents.

Before you get too wrapped up in the idea of "other valid fields for patents", you might check out some of those other fields. There is actually quite a bit of evidence against patents in many other fields as well, though the only link I have handy is to Derek Lowe's discussions related to pharma - http://pipeline.corante.com/archives/patents_and_ip/

Have a read of my other comment on the page (search antjohnst to speed up finding it) giving an example in the pharma industry.

I totally agree, I really like Notch usually. His posts are concise, to the point and honest.

This one isn't very well thought out and is adding more confusion into the pot.

Stallman gave a talk trying to compare software patents and literary patents:


I think it works and the "clumsiness" comes from the reality of patents e.g. see the smartphone patent wars.

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