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Three vantage points from which to view patents

I’ve been doing a lot of research recently into the patent system. The
impetus is the history-making
Peer to Patent project,
and specifically an article I recently finished for the Economist magazine. (“A patent improvement” in the September
8, 2007 issue, Technology Quarterly section.)

This blog is not about the Economist article or Peer to Patent, but
about how several months of immersion in the subject of patents has
affected my understanding of related policy issues, and how my
opinions differ from many of my friends in the software field.

Patents are necessary to promote invention

One of the fuzzier notions making its rounds in the software field
condemns patents as backward and oppressive. Not just software
patents–some people criticize the whole notion of patents.

What you have to remember is that every major innovation–even in free
software–tends to be driven by a highly-motivated visionary. Just
because a company may fund the project (or a community may provide bug
fixes and enhancements, in the case of free software) doesn’t mean the
role of the wild-eyed genius is eliminated.

Sara Boettiger shows in a
First Monday article
that patents are by no means incompatible with open source
development; in fact, they can protect openness. What if you create an
open source technology and someone patents an improvement to it? If
you have a patent on the base technology, you can bargain with the
person who patented the improvement, because he or she needs your
patent license to use the improved version of your software. That’s
one reason the

Open Invention Network

is worthwhile.

Open source is great, but it has worked so far in areas where people
can innovate sitting comfortably at a computer. They don’t generally
have to writhe around on the floor trying to insert a bolt in a
hard-to-reach place or mix dangerous concoctions of expensive
chemicals, which is how a lot of significant innovation takes place in
other fields. (However, the locus of innovation is shifting, an
observation I’ll take up in a moment.)

A good idea is a precious find, and not all of us are fated to make
the discovery. The inventors need both a guarantee of recognition and
the hope of financial reward (which sometimes has to be massive) to
continue the amazing roll-out of new inventions we’ve seen over the
past several decades.

One can speculate endlessly on what drives inventors to put in their
effort, but it appears they are spurred on by the opportunity to
own their invention, both in the sense of being recognized
publicly and in opportunities to make money from it. Indeed, the
patent system is valuable because it offers recognition and financial
reward while persuading inventors to give up some “ownership” and
share the invention with the public.

Patents that are improperly granted or exercised with too much
reckless force can cause harm and lead to high legal costs. Similar
things could be said about police who act improperly. As with patents,
some people (particularly among racial minorities) say they’d rather
not have police at all. But the abuses just remind us that powerful
forces need to be carefully regulated, and abusers have to be
disciplined.

Buying and selling of patents is required

Not everybody can take an idea from conception to market. Do you know
an inventor? Now do you know an inventor who can assemble the means to
produce the invention on a massive scale at high quality? If you do,
can that inventor also set up a company that’s expert at branding,
marketing, and distributing the invention?

All but a handful of independent inventors need to assign their ideas
to other companies in order to bring them to fruition. Even if a
company owns an invention, the managers may realize they’re not the
best company to manufacture or market it. Furthermore, innovation is
based on the recognition that an inventor deserves to be compensated
for his or her creativity even when others bring the idea to market.

So technology transfer is a fundamental part of the robust ecosystem
that allows inventions to reach the public in the form of
cost-effective products. And given that patents have an economic role
in encouraging inventions, I see a role even for the companies that
buy patents with no intention of manufacturing the invention. They may
deserve the accusation of trolling if they strike a manufacturer
strategically when it’s vulnerable and has to agree to loathsome
terms, but if they simply demand the license fees that would normally
be due the original inventor, they’re part of the same capitalist game
as everyone else.

It’s easier to understand licensing if you think of innovation in the
form of risk. Inventors may risk several years of their lives
developing inventions, and manufacturers risk money in developing and
marketing the resulting product. Assigning a patent to a patent
holding company is also risky, because the patent may be worth a lot
more than what it’s sold for. But it also may be worth a lot less, so
patent holding company is also taking a risk and deserves a comparable
reward.

The one risk inventors can’t tolerate is for someone else to get a
patent on something that’s obvious or already in widespread use.
That’s where we should focus on improving the patent system.

If policy changes tightened requirements for getting a patent,
facilitated the overturning of improperly granted patents, and reduced
the inflated damages that are awarded for infringement in many cases,
we’d reduce the specific “trolling” problem of companies that ask for
license fees greater than the invention is worth.

Software represents the current stage of innovation

This may be the most controversial observation in this article, and
the one whose implications I am least sure about. Technological
innovation has always represented the embodiment of a creative spark
in a machine or process–you might say that what people are patenting
is a mental process for manipulating some physical or
chemical process.

But technologists have explored the physical worlds pretty thoroughly.
Certainly we’ll see more new compounds–and the world of biology is
wide open for exploration–but it’s natural for a lot of innovation to
have moved to a higher level. Now that we’ve invented a lot of
physical or chemical embodiments of mental processes, innovation
continues among those mental processes themselves. And insofar as
mental processes are embodied in software, one can argue that patents
on software will promote further inventions.

I don’t buy this argument, even though I’ve tried to state it in a way
that’s fair to proponents. Correspondingly, many of the arguments
against software patents are flawed.

The complaint that a lot of non-novel processes were being patented
because software patents were new was a powerful argument thirty years
ago, but it’s getting old as the repository of software patents piles
up.

The complaint that software is complex is unsustainable because lots
of non-software machines and processes are complex too. Is most
software more complex than an oil refinery?

The argument against software patents that I find most persuasive is
the fundamental unity of a program. An inventor can always
identify the particular hinge she has added to a machine, or the
particular molecule she has added to a compound, making it unique.
There is no such construct in software. Everything a piece of software
does draws on data and code scattered throughout a program.

One can strip a function out of a well-designed program and substitute
another, but that doesn’t mean one can identify what makes one
function novel in the sense of being patentable. The difficulties of
designing modular software (well documented in dozens of books on
software engineering over the past four decades) show that in fact
software is a unified entity that is not merely the sum of its parts.

The damage caused by the enforcement of overly broad patents is often
called a “boundary” problem. (See, for instance, work by
James Bessen
and Michael J. Meurer
.)
I consider the unity of a software program to be the ultimate
expression of this problem.

Another way to state this point is that an idea is of little value,
and that the real innovation lies in the embodiment of the idea in
code. Protection of software by copyright is therefore sufficient to
protecting an inventor’s rights, and patenting software is overkill.

Tim O’Reilly, my employer, looks back toward the original social
contract behind patents: that the patent holder gets the exclusive
rights to develop a product in exchange for teaching the public about
the new technology. He interprets this tradition as demanding that
software not be patented unless the patent-holder publishes a working,
open-source implementation. (But the patent would still be restrictive
because it would rule out the release of other implementations, which
might be better or address different application domains.)

Proportional rewards

The fundamental dilemma in innovation is that it requires such a high
investment of time and money, with such a tenuous hope of reward, that
it’s amazing for people to undertake the effort at all. A legal and
economic system that offers enormous financial rewards to the inventor
who has benefited the public is a success. But such a system also
increases income disparities. The money spent by people on new
medicines and other patented technologies is one factor in a complex
equation that seems to funnel wealth to a tiny segment of the
population.

However, it should be possible to tweak the system without reducing
the rewards for innovation. One can hope that a more equitable
distribution of wealth will create more people with the time and
education to pursue inventions. There’s nothing wrong with a patent
system that acts as a tax whose proceeds go to inventors, so long as
undeserved patents are kept to a minimum and the public can afford the
tax.

I’ll finish with one comment about Peer to Patent. The most common
objection to it is, “They won’t get people to sign up and
participate.” I think the project has broken through this barrier to
feasibility, having gotten over 1,300 people to sign up during the
first two months and having received 57 suggestions for prior art
covering 14 patent applications (as of an email I got on August
22). This success may, of course, reflect the first flush of
excitement over a new idea, as well as the choice of computer-related
patents for the pilot.

However, I could very well see participation in patent review becoming
one of the volunteer activities that research communities come to
expect of their members, just as they now review journal articles, sit
on the boards of non-profits, and perform all sorts of
university-related duties unrelated to their fields. Most people who
achieve notable success in a particular field lead public lives and
take on public responsibilities, and the whole message of Peer to
Patent (enthusiastically picked up by the US Patent and Trademark
Office) is that the public can take on some responsibility for
patents.

tags:
  • http://schestowitz.com Roy Schestowitz

    > I don’t buy this argument [against software patents],
    > even though I’ve tried to state it in a way
    > that’s fair to proponents.

    I am aware that you are more of a scientist/author, not a lawyer. Would you also suggest that patenting mathematics should be appropriate because it relates to thoughts (or formulation thereof)?

    I am stunned (yes, stunned) to find that some people still think that merely anything can be owned and monetised.

  • Swashbuckler

    “Tim O’Reilly, my employer, looks back toward the original social contract behind patents: that the patent holder gets the exclusive rights to develop a product in exchange for teaching the public about the new technology. He interprets this tradition as demanding that software not be patented unless the patent-holder publishes a working, open-source implementation.”

    Then Tim really needs a refresher course: the patent disclosure is how the public is taught about the new technology.

    Most software patents are crap, but requiring/expecting that a software patent be put in open source is insane.

  • Alex Tolley

    “One can speculate endlessly on what drives inventors to put in their effort, but it appears they are spurred on by the opportunity to own their invention, both in the sense of being recognized publicly and in opportunities to make money from it. Indeed, the patent system is valuable because it offers recognition and financial reward while persuading inventors to give up some “ownership” and share the invention with the public.”

    You completely miss the point about the economics of patents. Patents were originally granted because proprietary knowledge was so hard to replicate and thus society would benefit from the temporary monopoly in exchange for the release of the knowledge. However, if it is easy to create new inventions, then the barrier to societal gain is low and there is no need for patent protection. The Horatio Alger model of invention is just self serving for existing patent holders. If a software algorithm can be reinvented a million times because it is so easy, there is no reason to grant it a patent as the “non-obviousness” criterion fails. Most patents however are granted because searches cannot find prior art, i.e. the novelty criterion only is satisfied. This hinders idea diffusion, not strengthens it.

    “Certainly we’ll see more new compounds–and the world of biology is wide open for exploration–but it’s natural for a lot of innovation to have moved to a higher level.”

    Another perversion of patent system has been the ability to effectively patent discoveries in biology by locking up use patents. This has become a huge problem in drug research as one example.

    “… innovation continues among those mental processes themselves. And insofar as mental processes are embodied in software, one can argue that patents on software will promote further inventions.”

    With this line of thought, why stop at software? Why not patent mathematics, even certain types of thinking itself. Perhaps one could patent a new political system? Do you really not see the bankruptcy of your line of thinking?

  • http://linuxworld.com/community/ Don Marti

    Andy, your arguments for software patents work just as well for prose patents. A book is complex, too. Should Steve Oualline be able to patent the analogy that he uses to explain pointers in Practical C Programming? The key is to balance the inventives for R&D that the patent system offers against the transaction costs of maintaining the system, and the balance clearly doesn’t work for software (or prose, or guitar chords, or rhyming words). (PS: please allow “cite” tags in comments.)

  • http://www.red-bean.com/kfogel/ Karl Fogel

    It’s not clear that innovation itself is inherently more useful to society than freedom to use all inventions available. How valuable is the “amazing roll-out of new inventions we’ve seen over the past several decades” if the world isn’t free to use those inventions?

    There’s a trade-off here. The more useful an invention is, then by definition the more harm is done (to everyone but the patent holder) by granting a monopoly on invention. I’m not saying that no good is done by the patent system; I’m just saying that its harm must always be roughly proportional to its benefit. It’s a negative feedback cycle: the more effective patents are at stimulating innovation, then the more effective they must be at squelching society’s ability to use those innovations, because for every invention they stimulate, they squelch others’ ability to use it.

    For a given invention X, we’d ideally want to know the probability of X having been invented anyway (without the patent system), and we’d want to know the “squelch factor” for X: that is, the number and usefulness of applications to which X cannot be put because while it is under a patent.

    It is possible that a lower overall rate of innovation would still be better, if in exchange for that we got a greater freedom to use the innovations that are available.

    Also, of course, re-use is not a static process: it can lead to other forms of less-dramatic, lighter-weight innovation, which the current system is biased against because the patent system imposes a constant overhead on everyone right now.

  • http://radar.oreilly.com Tim O'Reilly

    Swashbuckler –

    Have you read many software patents, and compared them to early patents for mechanical inventions? The latter effectively comprised a construction manual for the invention, complete with diagrams, by which anyone reading the patent could subsequently reproduce the device nearly exactly. Can you imagine anyone doing the same thing from the “disclosures” in a modern software patent? They aren’t even at the level of pseudocode, let alone reproducible code.

    Perhaps saying that only open source software should be patentable is going a bit far — I was trying to be provocative.
    But saying that working source code should accompany the application (to be escrowed by the patent office for the duration of the patent) should definitely be feasible.

    It would be an effective way of raising the bar against frivolous software patents. First off, people would have to have actually made a working program, instead of just describing an idea that they never implemented. Second, they would have to make the tradeoff between disclosure and monopoly protection that was originally envisioned by the patent office. (Source code might also address Andy’s unity argument — sometimes, you can see what’s original in a program, and there *may* be innovations so significant that they could qualify for patent protection. Although for the most part, I agree with Andy, that copyright is sufficient.)

    If you can show me a case where the public has been taught more about the new technology by a software patent by the disclosures in that patent than simply by observing the operation of the program, that is probably one of the few cases where patent protection might have been deserved. (Public key cryptography is a good example, whatever you think about the social effects.)

  • http://radar.oreilly.com Tim O'Reilly

    One more thing, Swashbuckler –

    In the old days, every patent application had to be accompanied by a working copy of the invention. (I saw Thomas Edison’s light bulb proudly displayed in the patent commissioner’s office.) That requirement was abandoned, but I think it was a good one. And it’s easy to do for software. As I said above, it would definitely raise the bar on one class of patents, for “inventions” that have never actually been built.

  • http://radar.oreilly.com Tim O'Reilly

    Andy,

    I’m not sure I buy your first premise, that patents are *necessary* to promote invention. I do believe that there are likely many cases where they encourage it, but there are probably others where they discourage it. (See Karl Fogel’s comment.)

    But that being said, those cases where they do encourage it are important ones. I’m thinking of one prominent inventor I know, Dean Kamen. Best known for the Segway, he actually made his money by inventing, patenting, and licensing medical devices: a portable dialysis machine and an insulin pump, both of which have saved many lives.

    What occurs to me thinking about Dean is that what the patent system (and particularly, the second of your three points) promotes is this: the ability for an inventor to remain an inventor, and not to be forced to be the one to actually commercialize his invention. Dean didn’t have to start a new company for each invention (although sometimes he might have.) The option of licensing allows him to go back to the lab.

    (Dean told me a funny story recently. Now, he’s done very well by his inventions, but he told me that when Sergey Brin came to visit him, and saw his display cases with his various breakthrough inventions, which have created billions of dollars in value out in the world, with only royalties coming back to Dean, he said, “Dean, you need a better business model!” In the case of the true inventor, the separation of invention and deployment and commercialization actually gives the inventor only a part of the value created, with perhaps a larger part going to the company that takes the invention to market.)

    And this is one of the big differences between traditional inventions and software: with software, invention *is* deployment. Especially in the era of open source and web 2.0, you don’t need to create a company to deploy and create value with your software.

    And it raises the interesting counter-case: why isn’t there a market for people to “license” designs for software in a way analogous to the way they license designs for machines or other inventions? Might that be another argument for why and how software is different?

    It seems to me (though I’ve done no exhaustive research on the matter) that software patent licensing fees generally come by extracting after-the-fact licenses from someone who has unwittingly deployed a parallel invention, and in the case of patent trolls, an after-the-fact extortion from someone who really built and deployed the invention, on the grounds of some theoretical prior art.

    If software patents are like other patents, there should be lots of cases where someone came up with an idea, patented it, and then found willing and eager licensees. (I’m sure that medical device companies are willing and eager to license anything else Dean does in that field.) Does anyone know of any such cases?

  • http://linuxworld.com/community/ Don Marti

    Tim, the RSA patent seems to be a good example of “willing and eager licensees.” Ford is also licensing a bundle of hybrid car technology from Toyota, and key elements of that are implemented in software.

  • Swashbuckler

    Tim,

    Yes, I’ve read a number of software patents and patent applications (admittedly mostly from my own company) – often in excruciating detail. I’ve only glanced thru non-software related applications.

    However, that’s not relevant to my point. If someone has to create software in order to demonstrate the patent, they shouldn’t have to open source it as well. Make it available for public review perhaps (and that’s questionable in my mind), but not open source.

    And creating software to demonstrate a patent is not always that easy. Some patents (I have a few in mind) would require months to write the software that accompanied the patent. If the U.S. ever fixes its broken patent system, one step of which would be to go to first to file instead of first to invent, requiring software would open a whole new kettle of fish. Does the software have to accompany the patent application? What if the software doesn’t work properly or doesn’t implement the patent exactly? Does that invalidate the patent application?

    If you want to get rid of bogus software patents then try to fix the root of the problem: patent examiners who don’t have a clue. In my mind, what you’re proposing is a band-aid.

    Personally, I think software should be patentable, but the crap that gets accepted these days (e.g. 1 click) is ridiculous. And, at this point, I’d be willing to punt on software patents until a proper review system can be implemented. Right now, software patents are more trouble than they’re worth.

  • http://techn.ocr.at WmD

    I don’t mean to nit pick, but…

    “Tim O’Reilly, my employer, looks back toward the original social contract behind patents: that the patent holder gets the exclusive rights to develop a product in exchange for teaching the public about the new technology.”

    Patents don’t grant the right to produce anything, only the right to prevent others from doing so.

    The basic example, Amy patents a doorknob. Jacob seeing the doorknob, patents a doorknob with a pushbutton lock. Jacob is prevented from making such a device by Amy’s patent on the doorknob itself. The only value there is that Jacob can prevent Amy from making a doorknob with a pushbutton lock, so he can try to get money out of her.

    Hooray for exclusionary rights!

  • http://wgz.org/chromatic/ chromatic

    If someone has to create software in order to demonstrate the patent, they shouldn’t have to open source it as well.

    It’s difficult for me to reconcile this idea with the simple fact that non-software patents trade public disclosure of a patentable invention for the right to exclude other people from reproducing the same invention.

    Without the public disclosure portion of the patent, what value is there for the public to allow a temporary monopoly in manufacture and sale?

  • http://radar.oreilly.com Tim O'Reilly

    Don –

    Then these are cases of “good” software patents. Or at least ones that are deserved.

    Swashbuckler –

    If someone hasn’t written the software yet, then why should it be patentable at all. Then it’s just an idea, which may or may not be workable. Edison had the “idea” for a lightbulb long before he had a working implementation. But you don’t get a patent for an idea (at least you didn’t), but for something that really works.

    I agree that open source (i.e. the requirement to allow redistribution) isn’t the right term for the kind of software disclosure I have in mind, because if it were patented, it couldn’t be copied and redistributed. So the two are contradictory. What I was referring to was just the idea that the source should be disclosed — that there should be a working model of the program (including source code) as part of the disclosure. I think it would solve a lot of problems, and would prevent a lot of bad software patents.

  • http://grandcanyonhiker.com Ken McNamara

    The best example of the value of software patents is the LZW – GIF patent.

    You could write a book on the innovation inspired by that single patent.

  • http://www.connotea.org Ian Mulvany

    There is an interesting complement to the patent system in the domain of assigning credit to ideas, which is the academic peer-review system.

    The inventor of the idea in the case of academia is the author. The equivalent to the patent office is the editorial board of the academic journal that the author submits to.

    There is an idiosyncratic historical connection between the two systems too. Einstein famously worked as a patent clerk in Bern, Switzerland, before becoming a published academic.

    At the time that Einstein was working the volume of patent applications was probably on a par with the submission rate of academic papers to peer reviewed journals, though I have no figures to back this up. In both cases an idea was submitted, examined by experts for originality and either accepted, granting the creator rights, or rejected, sending them back to the drawing board.

    Fast forward to today and it seems that on the whole the two systems, work in almost the completely opposite manner from one another.

    The peer review system continues to work much as it used to. An idea is submitted, reviewed, in most cases rejected initially, tweaked, re-submitted and possibly accepted. Scientists for the most part are looking for peer recognition though publication, and the career rewards that come with that through tenure and increased likelihood of earning academic grants. The micro-bio and nano fields are diverging from this template, but I’ll get back to that at the end. I would classify this system as one in which the interrogation of the idea happens before the laurel is bestowed on the applicant. Contrary claims or claims of prior art appear as new publications in an ongoing conversation, but it is very rare for the reward (the citable paper) to be retracted. Working as a publishing editor for three years managing five academic journals I saw this happen with one paper, and even that that was considered unusual.

    The patent system currently seems to work in completely the opposite way. The bar for having a patent approved seems quite low, but even after acceptance of a patent the rewards are not guaranteed until after the patent has been challenged in a court. The interrogation happens after the laurel has been bestowed, and only in cases where there is contention that there might actually be money to be made, which seems to be the real reward that drives people to patent their ideas rather than publish them.

    Now why is this the case? I would offer this idea. Patent offices are essentially national bodies. This means that compared to the growth of academic journals there are relatively few of them. The academic system provides a distributed means of testing the goodness of the ideas, and so as the volume of academic submissions has risen the journal system has been able to scale with the growth and been able to cope.

    While patent applications remained mainly technical it was possible for a centralized office to cope with the volume, but the advent of software patents has dramatically changed the balance. (I’m not saying that these ideas are essentially less valuable intrinsically, but rather that the explosion of people literate in creating though the medium of computer code has increased dramatically the volume of patents that are being filed). Under this increase in volume the national patent office system has simply broken. Where it now finds it’s scalability is in the court system. There are lots of courts and lots of lawyers versed in patent law. I am not sure that any fix to the patent office, or to the information that is required to submit a patent is going to get rid of the problem of scalability as long as the office remains a centralized organization, but I might well be dead wrong about this.

    In what could be a worrying parallel to the way that the patent system has gone the peer review system is beginning to experience strain. It is clear that it is key in the scientific process, however the vast numbers of qualified scientists coming out of China and India are beginning to greatly increase the submission rate to academic journals. The peer review system is beginning to creak under the weight. I hasten to add that it is working just fine at the moment, but consequences can be seen in the growing importance of various citation indices. A publication on its own is no longer sufficient for the advancement of most academic careers. It usually has to come with additional properties, such as being in a popular journal, being cited a certain number of times.

    Another interesting development is that in some scientific areas patents are replacing peer-reviewed publications. I know of a few groups working on nanotechnology where they have results that could be published in a peer reviewed journal, but to do so might infringe on IP. In other cases the revenue from industry that the groups are attracting mean that at the moment they don’t have the time to commit to writing up their results for peer-review.

    Are the two systems getting closer again?

    Could the patent system benefit from having different levels of quality in the way that the peer-review system has different quality journals? A gold-standard patent requiring full code disclosure and bug-free running program, with a bronze-standard patent being equivalent to the current level?

    How can both systems utilize collective intelligence to alleviate the numerical and informational pressure that surrounds the act of review?

    Though a word of caution, if you have answerers to the above questions you should probably patent them, shhh now.

  • http://www.scottberkun.com Scott Berkun

    It’s useful to note that us software folks aren’t the first to claim that a) the patent system is broken b) that our technology is unique and doesn’t fit the “antiquated” model. Every patent system in history I’ve seen was abused, misguided in some major fashion and failed its share of altruistic inventors. And many waves of new tech claimed that their work was hurt but an aging system.

    My point isn’t that we should stop complaining – only that we can learn from other innovators who have run up this hill before.

    Buckminster Fuller was a long time critic of the U.S. patent system back before WWII. Prior art collisions occured often even with mechanical inventions, and the process of creating and researching patents was obfuscated by legal bureaucracy. It’s particularly useful to read the history of the lightbulb patent, as many of the issues we gripe about have clearly been with us for some time.

    > Andy wrote:
    >
    > The argument against software patents that
    > I find most persuasive is the fundamental unity
    > of a program. An inventor can always
    > identify the particular hinge she has added
    > to a machine…

    This isn’t quite true. Some inventions are novel because of how they combine existing elements, not necessary the creation of a singular new element (I’m pretty sure the the early gas engine patents by Benz or Otto, fit this). I don’t buy most of the “software is a unique kind of invention” arguments, but that’s a separate thread.

    More interesting is how the semantics of what is an element and what is an invention dissolve quickly. The Phillips screw (Patent #2,046,343) is itself an invention, but appears in zillions of other inventions as “an element”. Yes, its patent expired, but conceptually all inventions reuse other inventions. The boundaries we create are arbitrary and there is no perfect answer.

    In research for The myths of Innovation book I spent some time studying different patent systems and they all had major problems, half of which were political, but the other half were due to the inherent subjective (e.g. sloppy) nature of defining what is novel, creative, unique or innovative. That judgment, in every system, is made by analysts of some kind and their training, hiring and reward system seems the most leveraged place to explore reform, whatever the intent of the reform is.

  • http://k.blog.com/ S√©rgio Carvalho

    In the discussion of patents as a whole, and software patents in particular, there a few key points which I find obvious enough that everyone can agree. Let me line up those, then I’ll come to a conclusion, and meet your post in between.

    1) Patents are an artifact. By this, I mean patents are an imposed scarcity on a good that has no reproduction cost. Reproducing an idea, software or any other kind of information costs zero. Non-scarce items have zero value in a capitalist economy, so patents are an artifact designed to assign value to ideas. It’s important to note this, because it reveals that we *can* lift this scarcity.

    2) Patents protect investment. That’s the general idea behind patents. They introduce scarcity on reproduction of an idea, to reward the one who originally invested in it. Many inventions are impossible before being achieved, only to become obvious afterwards. We need to reward those who pour time and money achieving the impossible.

    3) Patents introduce costs. Patents require a large social support framework, from patent offices to lawyers to courts. All of this imposes costs on people having ideas, on people using ideas and on society as a whole.

    4) Patents introduce evolution lag. While a patent is valid, recombination of the patent idea to produce novel ideas is limited. By this I mean that an idea dependent on another patent has reduced value, so is less rewarding to pursue.

    I think these four points are solid enough to be a basis for discussion. Now, the question about patents is that they produce both positive and negative effects. It is immediatly obvious that an indiscriminate use of patents produces a legal nightmare that freezes evolution. A balance is needed.

    I also happen to have the opinion that the negative effects of patents very quickly surpass the positive ones. The reasoning is simple: There are very few individuals with the ability to produce breakthrough innovation. These individuals are very rarely at the top of the economic food-chain, so are very vulnerable to the costs defined in point 3 and to the reduction of value defined in point 4.

    In general, a patent system that fails to protect some valid patenteable ideas is much better than a system that protects ideas that should not be patenteable. It so happens that we currently have a system that allows stuff as obvious as Amazon’s 1-click to be patented. It’s absurdly skewed and should be shutdown and rebuilt.

    Regarding software patents, software is a minefield for obvious ideas that appear patenteable but are not. Most ideas in software can be invented in a few monts time, and do not warrant protection for a couple of decades. I believe that the current distortion of the patent system would only be worse in software.

    Although software could use a *good* patent system, I don’t believe it’s feasible so it’s better off without any patents at all.

  • Haig S.

    Patents restrict use of the invention (the class, not the instance) to the terms set by the owner of the patent. By definition that is not open innovation. It impedes all further innovation that could evolve through using that invention even if independently re-invented without the knowledge of the original patent.

    However, Andy is very right when he says inventions are usually instigated and nurtured by a visionary leader(s) and that leader needs to ‘own’ her hard-earned work in order to stay motivated.

    That’s why the copyright system (including the copyleft and open source hacks on top of the US system) are there. They provide the person who worked so hard to own their work without owning all possible works within that invention-space.

    You should be able to own the instance object, not the class.

    This creates the best of both worlds where people stay motivated to invent and innovate but doesn’t impede others from doing the same and doesn’t block avenues of innovation that may be the only road to further advancements.