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.
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.
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.
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.
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.
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
>"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.
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.
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).
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.
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.
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.