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Paul Graham on Patents
Posted by
CmdrTaco
on Mon Apr 10, 2006 10:10 AM
from the stuff-to-read dept.
from the stuff-to-read dept.
volts writes "The always interesting Paul Graham has a new essay, 'Are Software Patents Evil?'. "A few weeks ago I found to my surprise that I'd been granted four patents. This was all the more surprising because I'd only applied for three...""
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Patents are not what they are supposed to be. (Score:5, Insightful)
Re:Patents are not what they are supposed to be. (Score:5, Insightful)
Sometimes it's just easier to sell your patent than it is to litigate.
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It wasn't such a good idea (Score:4, Insightful)
I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company. This was probably a difficult thing to imagine when patents were invented, since really big companies wouldn't have existed back then, and the legal system was probably also quite different. There was probably no such thing as "expensive lawyers".
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Re:It wasn't such a good idea (Score:4, Insightful)
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Re:It wasn't such a good idea (Score:5, Insightful)
So what you are saying is that the combination of these two things is bad:
I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.
Parent
Slight wrong here. (Score:3, Insightful)
Re:Patents are not what they are supposed to be. (Score:5, Insightful)
I don't think that they had "protecting" anybody in mind. What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died. Perhaps unfortunately, the chosen means to this end was by granting time-limited monopolies.
The problem is that the enticement part has become the all-consuming focus of the patent process, rather than the disclosure of useful trade secrets part. Now a lot of people think that patents are a form of property right a sacred as the rights to their favorite pillow, and the patents themselves most often have obfuscated claims that reveal little if anything that isn't obvious from a quick look at the protected products themselves. They extrapolate from the "protection" side effect of the way patents were implemented and mistakenly assume that that was the primary goal all along.
The inventor now gets far more than the original intended benefits (because he can now often shake down a large company for the profits to all of their business), without having to give up much of anything in return. Much like agricultural market subsidies, patents have become little more than a wasteful government entitlement program.
Parent
Re:Patents are not what they are supposed to be. (Score:3, Informative)
At least you're honest. The original intent of patents was to advance science [findlaw.com]. Protecting the inventor (via a time-limited monopoly) was only the means to that end, not the end itself. From FindLaw (speaking of both copyright and patent law):
Re:Patents are not what they are supposed to be. (Score:4, Informative)
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Fallacy (Score:5, Insightful)
And he thinks that Microsoft would be deterred by a boycott?
Bruce
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Re:Fallacy (Score:5, Insightful)
Entirely. Furthermore, the argument of patents wrt innovation seems to ignore an important point. Without patents in software, a new feature (such as one-click) would be replicated, improved, or would spur new ideas, without fear of any recourse. Same would go for any other thing - I cannot think of anyone that would see one-click and think "hmmm, now HOW did they do that?!" - a detail that the patent would reveal. Software patents are being used to protect conceptual ideas (very tenuous ones, at that) that have no secret (hence trade secrets being useless). Nobody cares exactly how Amazon implemented one-click (unless I am mistaken, please correct me if you do). That's the difference I see with mechanical patents. Perhaps, if someone came up with a mechanism to cut diamonds that yielded less waste, then to replicate this, you couldn't avoid implementing the same mechanism. That is, unless you came up with something entirely different, that had the same effect (high quality cut, low waste). And as far as I understand patent law (IANAL), that would be O.K. Different mechanism, same end-effect, no problem. Not so for software. Different implementation, same end-effect (one-click ordering), and you're bound by the patent.
That's a problem and I think Paul overlooks this.
That said, Paul's post on this is an excellent essay on the topic from a number of different angles.
Parent
Re:Fallacy (Score:3, Insightful)
Re:Fallacy (Score:3, Insightful)
Right, and (please correct me if I'm wrong), but the only way I see patents spurring innovation is if (a) developers were in the habit of following patent filings & reading through patent listings to develop new ideas and (b) they then used the knowledge and methods from the patents to develop something new (the innovation)
Re:Fallacy (Score:3, Interesting)
I agree the users can't boycott Microsoft, but I think the point that Engineers would start to leave is valid. The people I know who work for MS don't believe it is an evil company, a company with problems yes, but all large companies have that. If they did believe it had gone too far I don't believe they would stop any longer than the time it took to find a new job.
Re:Fallacy (Score:3, Interesting)
Yes (Score:5, Insightful)
It does not take a long essay to answer this.
And BTW, Paul Graham is wrong when he says, "if you are against software patents, you are against all patents".
All patents have the potential for evil. But software patents are guaranteed to do evil.
Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.
Yes, software patents are evil because in the name of promoting innovation in a field, they actively destroy it.
Re:Yes (Score:3, Interesting)
if software patents would apply only to commercial software (e.g. gnu staff could always use patented stuff as long as they give away the product for free, and microsoft would have to pay nice $$$ for the same thing), the patents would be better.
but i think there's a higher chance of bush turning into a human being than this happening.
Re:Yes (Score:3, Insightful)
There are plenty of companies which develop FLOSS, individual FLOSS developers that make money developing FLOSS, and end users avoiding spending money on software by using FLOSS.
Re:Yes (Score:3, Insightful)
It sounds like he wants to prentend that patents won't play a big role and be "secondary" and without them, we're all screwed in the "alternative" he mentions.
But if patents are so great, and the alternative so bad, explain the advancement in first years of the computer industry up to the 90s.
It's also ironic that he puts says either you are for patents or you are against patents, if you are against software patents - because software
Re:Yes (Score:3, Insightful)
Nicely stated. To prevent the problem of trade secrets becoming a block to innovation, Congress developed the patent system. To prevent the problem of someone simply copying your stuff and putting their name on it, Congress developed the copyright system. It wasn't until patents were applied to stu
Re:Wow, how wrong (Score:3, Insightful)
It's a description of knowledge. Whether you write down a description of an algorithm in English or in C, on a floppy or
Knowledge vs application (Score:5, Insightful)
Calculating (a+b)*(a-b) is better (in terms of rounding errors with fixed point arithmetic) than (a*a)-(b*b). Knowledge or application?
Suppose I was the first to notice this fact. Should I be granted a patent on calculating differences of squares this way? I have a gut feeling that this would be patenting math. And I don't see much difference between this and any other patent on algorithms. Maybe there are software patents that aren't patents on algorithms (for example GUI stuff), but again, the distinction is blurry.
Ok, this is still on the "gut feeling" level, but I think that with the software patents banning them is just simply the lesser evil than allowing them. I think that there is rather a continuum than a sharp distinction between "knowledge" and "application", and that software is close enough to "knowledge" to make it unpatentable.
To stretch it a bit: if you are for software patents, you are for patenting math.
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Re:Yes (Score:3, Interesting)
From TFA:
Really? I think it fits perfectly. They haven't started suing yet because they are only on the b
bzzzzzzzzt - wrong! (Score:5, Insightful)
Wrong. Hardware patents are necessary to commercialize new products and keep innovation. Some medicine patents are also necessary, but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.
But patents for software or business methods are an aberration.
Re:bzzzzzzzzt - wrong! (Score:3, Insightful)
Re:bzzzzzzzzt - wrong! (Score:3, Insightful)
There is another way in which software inventions are essentially different from physical inventions. In the physical world having
Re:bzzzzzzzzt - wrong! (Score:4, Informative)
Or maybe the National Research Council [nap.edu], claiming that the software industry is quite different from traditional industry sectors for various reasons.
Or maybe the Max Planck and Fraunhofer Institutes [isi.fhg.de]? (the latter even own some patents on mp3 compression)
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He's Recognized Us! (Score:3, Insightful)
On the contrary, it's shocking and down right insulting that some of these patents have been granted. I think Mr. Graham hit the nail right on the head when he said the USPTO is dropping the ball on granting obvious ideas patents. As I've pointed out before [slashdot.org], they've patented the progress bar [espacenet.com] and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.
You know, time and time again there are stories about the horrors of patents. But what are we actually doing about it. Are there patent protests? Are we screaming foul play in the NTP Vs RIM court case? No, we aren't. We're just sitting back and watching patents get out of hand. I know I can, as well as Paul Graham, point out the problems with patents but what solutions are there to explore?
Good but idealistic article (Score:4, Insightful)
"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."
This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees. There are other companies/people who do nothing but try to think of patentable ideas to lay claim to, and never intend to build a product; only to extort license fees from others.
There are other examples of what the author would like to believe that gloss over the terrible realities of software patents; despite the many good points he does make.
Re:Good but idealistic article (Score:4, Informative)
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new offer... hurry ! (Score:3, Funny)
Oooooh ! dint u know ? they have an offer on those lil fellas now.
buy three
get one free
hurry.. offer open till stocks(no pun intended) last !
Stupid, Stupid, Stupid (Score:5, Insightful)
How is the one-click patent not invalidated by the prior art of millions of human shopping experiences in which a customer says "One of those please", or a vending machine in which every item has its own button? Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.
And if a one-push vending machine would not be patentable, why is a one-push webpage?
I disagree (Score:3, Insightful)
However the non-trivial idea would be a vending machine that identified the user, something that's a very common feature on websites.
Software - Patents & Copyright (Score:3, Insightful)
Copryright is more applicable to software than Patents.
Feel free to discuss it, but I do not beleive that any person or group, has yet or will disprove the above statement.
I'm willing to engage in this discussion, furthermore I'm also willing to keep an open mind.
More interesting than Paul Graham (Score:4, Interesting)
Anyway, I heartily recommend you read this fine demolition [idlewords.com] of Graham's opinions on painting [paulgraham.com] before giving this dilletante blowhard any of your copious free time.
Re:More interesting than Paul Graham (Score:5, Insightful)
Does Graham actually claim to be an authority? It seems to me that he doesn't claim to be an authority, but fanboys tend to treat him as such. That isn't really his fault. What's he supposed to do, take a vow of silence just because some kids have latched onto him?
Parent
Re:More interesting than Paul Graham (Score:3, Insightful)
Patents- (Score:4, Insightful)
EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."
Only because of the length of time (Score:3, Insightful)
I am a strong supporter of patents, but get really pissed off at the "pro-innovation" camp (who isn't pro-innovation?) that has the audacity to draw a parallel between software "innovation" and genuine innovation in other industries. There hasn't been a radical new technology except in niche markets for some time that justifies a patent for more than three years. Not only that, but the cost to make one drug, test it and get it widely used by its target audience is probably closing in on the cost of writing several commercial applications.
He's confused (Score:3, Interesting)
Unfortunately, patent law is inconsistent on this point. Patent law in most countries says that algorithms aren't patentable. This rule is left over from a time when "algorithm" meant something like the Sieve of Eratosthenes.
and then he says...
In 1800, people could not see as readily as we can that a great many patents on mechanical objects were really patents on the algorithms they embodied.
and using this argument he says that if you don't like software patents you don't like patents in general.
I think there is a big difference between the method of a process, and the mechanical objects that implement them. I have no problem with people patenting mechanical objects (that are non-obvious). I do have a problem with people patenting methods that would work with those objects. If he thinks that algorithms implemented in mechanical objects is the same thing as algorithms, he isn't much of a lawyer.
Paul Graham (Score:4, Insightful)
He couldn't be more wrong.
Software is instructions to hardware. Instructions should not be patentable. Hardware should be patentable - though there may not be a business case to make it worthwhile.
The otehr day I had to give directions to a picnic to a group of soccer players. There's really only one reasonable way to get from where they were to where they'd be going. What if someone had patented the description of how to get from Point A to Point B, that is how to get some hardware from one state to another? Does anyone think it logical that I would have to pay a royalty for telling this bunch of 13-yr olds (well, their parents) directions to get to their picnic? No? Then why are a set of directions to a collection of hardware patentable?
The directions could have included a toll road - or an alternative existed to take a more crowded road instead. Here is a pay-for-the-patented-hardware concept that makes sense. Using the toll road costs money but saves time. Using the public road is cheaper in money, but costs traffic congestion. But either way, the directions to use either road are free for any to use. And for what it's worth - the public road has many services along it that make money. The toll road, built privately by private financing, saves a few minutes. Of course, in this case, the private financiers have taken a bath. They envisioned charging a bunch for the access rights to their frontage property to service providers - but few people use their overpriced path. A better business case could be made that the toll road owners should remove the tolls and collect a royalty from the service providers that would then invest in locating on their frontage road, but hey I'm not an investor in that endeavor so who'd listen to me.
There used to be services (maybe still are) before mapquest and friends that provided directions for trip planning - you paid $10 to AAA and they told you the "best" way to get from point A to point B. No one would have thought of patenting those directions, and you were not paying for a royalty for their use - your payment was for the work someone did (at sometime) to figure out a route - but you're free to look at a map and make some phone calls to the various state traffic agencies to find construction delay zones, etc. and work out your own route.
Say you planned, some years ago, to drive from Chicago to Los Angeles. Say you glanced at a map of the time and decided to "get on Route 66 headed west and stay on it till you see the ocean." Besides a trip with about 1000 burger joints, you now have some directions. Now say you asked your friend his idea of a good route for the trip, and he'd recently done that trip by contacting AAA, giving 'em $10 and they worked out a trip plan for him based on some criteria, and he got back: "get on Route 66 headed west and stay on it till you see the ocean." Do you owe $10 to AAA for those directions? What if they (like software) were patented?
Software patents are a bad idea. They impede progress. They tell (possibly justifiably patentable) hardware how to get from condition A to condition B. If those same directions would work on someone else's nonpatented hardware, then they should be free to be used.
Breath of fresh air (Score:5, Insightful)
After participating in several start-ups, I can also attest that the number of patents held directly affects your valuation. The author alludes to this, "A patent seems to change the balance. It gives the acquirer an excuse to admit they couldn't copy what you're doing. It may also help them to grasp what's special about your technology." Right or wrong, it is one of the external measurements made by business today of a start-up's worth.
Software is the most complicated thing man has ever created. It isn't surprising that the Patent Office struggles. The question is, as software professionals, will we choose to help or just stand by like "art critics"? Software engineers usually see a bad system and want to immediately "chuck it", re-write it, and go again. We can't do that here. We need to do the thing we all hate most: on-going maintenance. We could help if we engage and participate. Perhaps more thoughtful discourse like this will help us get started. My 2-cents.
His analogy of the USPTO as a loose woman... (Score:4, Funny)
"...the USPTO in effect slept with Amazon on the first date."
As a side note, if any USPTO examiners who are assigned to one of the several applications I have pending are reading this; I will still respect you in the morning -- no really, I will.
Actually, there is a difference: Copyright (Score:5, Interesting)
I go more into depth about this elsewhere [jerf.org], but the short answer is that we shouldn't be surprised that patents, balanced for one type of use, and copyrights, balanced for another, make no sense when both are covering the same thing, since they were never designed to do that.
Obviousness is a real problem too, of course, but that's more a practical problem, one that could be corrected by more aggressive denials by the PTO. This is a fundamental conflict.
Why software patents are different (Score:3, Insightful)
o Software can be sent to customers almost for free. Physical goods needed the protection of a 17-year monopoly because back in the old days progress was slow and it took years to build your factories. No patent monopoly, no payback. Software inventions can make money without patent protection.
o Software can use copyright protection.
o Patent examiners and juries can understand gears, wheels, and aircraft wings.
o Paul Graham says machine patents really cover the algorithms hard-coded into the arrangement of parts. No. Patents cover implementations. When the crankshaft was patented it was still legal to build other implementations of the algorithm "given linear motion l=sin(wt) set circular arc theta equal to l mod 2*pi*r and draw rotary power", as long as those implementations weren't crakshafts.
o Machines are crystallized human ingenuity and effort. Software patents are crystallized mathematics. The RSA patent, which made it illegal to do certain kinds of modular exponentiation, is different from anything in the mechanical world.
I agree, "non obvious" is the problem (Score:3, Insightful)
One click shopping or Apples patent on the "3 pane interface" for itunes are stupidly obvious. A person coding in a drunken fog should not be able to create an infringing program by accident (IDEA passes this test, one click and 3-panes does not).
The reason many folks (like me) jump on the anti-software patent bandwagon is a lack of confidence that anything short of abolishing software patents will be effective. Obvious patents benefit powerful corporations who can set their minions to the task of patenting belly button lint and other "innovations". With all the vested interest in bad patents it is easy to see why we are skeptical that meaningful reform (i.e. enforcement of the "non-obvious" clause) will occur. Of course if software patents cease to exist then the slippery slope of what is "non-obvious" disappears.
Mind you I don't think we will be successful in abolishing US software patents (not without a bloody "cultural revolution" a la Mao Tse Tung) but the disgust engendered by horribly bad patents naturally inspires an excessive reaction in the opposite direction.
BTW, if you think it is an accident that bad patents are issued left and right, think again. You won't find Microsoft, Oracle and Amazon spending millions of dollars lobbying Congress to properly fund the patent office. The patent office is underfunded because the people who get face time with our leaders like it that way.
Judging on Current State (Score:3, Insightful)
A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee.
That is the majority of what has happened in the past 10 years because the rampant proliferation of overbroad software patents has just begun. The market is a Darwinian environment. It selects for those who take advantage of flaws in the system and it takes time to optimize. A giant, gaping, cash-gushing flaw in the system right now is the granting of overbroad patents, and in software it is a relatively new flaw (though the flaw itself has a long and ugly history - Bell wasn't the only guy to invent the telephone - he was just the first to the USPTO). Graham makes this point to an extent saying that the USPTO hasn't adapted to software patents yet.
But he misses the correlary: Businesses have just begun evolving to take advantage of the software patent flaw. What has happened so far is only a twinkle of what is to come. Sure, Amazon got stung in the reputation department. But the patent trolls of the world have no reputation to sting. Is Eolas going to lose a bunch of customers over the active browser patent? I'm not saying Eolas is wrong, just that they won't be moderated by the environmental influence that Graham mentions regarding Amazon. The patent trolls are just starting to evolve, and they have natural defenses against the moderating influences that have kept the patent law departements of IBM, Microsoft, and Oracle in check.
And it's not going to be limited to a few fringe companies with a few fringe patents. More and more the executroids are defending companies that buy patents because they create liquidity in the IP market - enabling research heavy corps to capitalize their patents without having to bring products to market. IE: they are saying it is a good thing for the patent trolls to buy patents - regardless of whether they have any intention of taking the embodiment to market.
Paul is judging the system based on what has happened so far. But the market is just beginning to evolve. As broken as it is, the current state is very far from the invention wasteland, strewn with the bodies of a million inventors and ruled by packs of lawyers, that is coming.
Patents + Software = eternal monopoly (Score:3, Insightful)
Software Patents extend for an exorbitant amount of time relative to the industry. 17 years amounts to around 11 generations (assuming 18 month cycles) of software. That's an eternity in the software industry.
It would be the equivalent of saying that a regular patent could exist for 50-75 years. Imagine having a 50-75 year monopoly license on a drug or a way more effeciently generate electricity. Yet, we treat software patents just like that.
There are plenty of existing cases that show this. Look at the generic multimedia patents that still affect software today. The reason most of these patents sound nonsensical when we see them is because we're about 2-3 generations past when they were relevant.
Ultimately, software patents don't spur innovation. Today, they actually stifle innovation. It is getting more and more difficult for the small companies to simply write cool new software. More lawyers are involved today and it slows down the process.
And these software trolls that exist and don't contribute anything to society make a bad situation much worse.
Valuation & a Patent's Value (Score:3, Insightful)
As a big company... I've worked for a few Fortune 500 companies that have done extensive acquisitions and as a 'big company' guy, the concept that patents are solely used as a chip for negotiations is a naive statement. When buying the assets of a business, the patents and trademarks are typically the ones that last. Many entrepreneurs (I should know as I am one now) are interested in cashing in and as a result, an acquiring business cannot solely look to relationships or know-how for value, so IP is what's left. If you really have a truly unique idea/product/service, then protecting it should be stupid-easy (and with luck, people will say it was obvious 10 years later because of its streamlined solution
Patent novelty is an issue in need of resolve... I don't believe in quantity over quality as Paul Graham might suggest, but I do believe in quantity to be successful. The process is age old - find needs, solve problems, research for current solutions and protect the best ideas. Getting quality patents should be easier now since more data is available. The USPTO and the market really do have a new set of options to consider (e.g. peer reviews, more collaboration amongst reviewers). Slashdot members can find novelty, or lack thereof, in a topic in less than 30 minutes - why can't the USPTO? With a production-line environment at the PTO, it is hard for patent agents to get a fair chance to research technology and be rewarded for deep tenure in a field. We should avoid thinking of this as 'patent reform', but rather as funding the system approapriately given the systems explosive growth.
In the end, patent ownership, like land ownership, has rights and benefits that shouldn't be reduced to a simplistic version of cold war analogies of large companies determining our fates. The patent system should level the playing field and give small guys and individuals a chance to have rights. BTW, if we should ever be worried about the small guy, now is the time. Individual inventors' patent issuance has decreased every year since 1999 - http://www.uspto.gov/web/offices/ac/ido/oeip/taf/
CSorice
Re:The US Patent Office is very generous . . . (Score:4, Informative)
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