Categories
Uncategorized

An Open Letter to the USPTO

Following the Supreme Court’s decision in Bilski v. Kappos, the United States Patent and Trademark Office (USPTO) plans to release new guidance as to which patent applications will be accepted, and which will not. As part of this process, they are seeking input from the public about how that guidance should be structured. The following is an open letter than I have sent to the USPTO at Bilski_Guidance@uspto.gov. More information is available at http://en.swpat.org/wiki/USPTO_2010_consultation_-_deadline_27_sept and http://www.fsf.org/news/uspto-bilski-guidance. As with all of my posts, the following represents my personal opinion and is not the opinion or policy of my employer.

To whom it may concern at the United States Patent Office:

Since completing my undergraduate studies in mathematics and computer science at the Massachusetts Institute of Technology (MIT) and my doctorate in computer science at Carnegie Mellon University (CMU), I have spent my entire professional life in software research and development. I have worked at large software companies, such as IBM, AT&T, and Google, and I also was a founding employee at Endeca, an enterprise software company where I served as Chief Scientist. I am a named inventor on eight United States patents, as well as on eighteen pending United States patent applications. I played an active role in drafting and prosecuting most of these patents. I have also been involved in defensive patent litigation, which in one case resulted in the re-examination of a patent and a final rejection of most of its claims.

As such, I believe my experience gives me a balanced perspective on the pros and cons of software patents.

As someone who has developed innovative technology, I appreciate the desire of innovators to reap the benefits of their investments. As a founding employee of  a venture-backed startup, I understand how venture capitalists and other investors value companies whose innovations are hard to copy. And I recognize how, in theory, software patents address both of these concerns.

But I have also seen how, in practice, software patents are at best a nuisance and innovation tax and at worst a threat to the survival of early-stage companies. In particular, I have witnessed the proliferation of software patents of dubious validity that has given rise to a “vulture capitalist” industry of non-practicing entities (NPEs), colloquially known as patent trolls, who aggressively enforce these patents in order to obtain extortionary settlements. Meanwhile, the software companies where I have worked follow a practice of accumulating patent portfolios primarily in order to use them as deterrents against infringement suits by companies that follow the same strategy.

My experience leads me to conclude that the only beneficiaries of the current regime are patent attorneys and NPEs. All other parties would be benefit if software were excluded from patent eligibility. In particular, I don’t believe that software patents achieve either of the two outcomes intended by the patent system: incenting inventors to disclose (i.e., teach) trade secrets, and encouraging investment in innovation.

First, let us consider the incentive to disclose trade secrets. In my experience, software patents fall into two categories. The first category focuses on interfaces or processes, avoiding narrowing the scope to any non-obvious system implementation details. Perhaps the most famous example of a patent in this category is Amazon’s “one-click” patent. The second category focuses on algorithm or infrastructure innovations that typically implemented as inside of proprietary closed-source software. An example in this category is the patent on latent semantic indexing, an algorithmic approach used in search and data mining applications. For the first category, patents are hardly necessary to incent disclosure, as the invention must be disclosed to realize its value. Disclosure is meaningful for patents in the second category, but in my experience most companies do not file such patents because they are difficult to enforce. Without access to a company’s proprietary source code, it is difficult to prove that said source code is infringing on a patent. For this reason, software companies typically focus on the first category of patents, rather than the second. And, as noted, this category of innovation requires no incentive for disclosure.

Second, let us ask whether software patents encourage investment in innovation. Specifically, do patents influence decisions by companies, individual entrepreneurs, or investors to invest time, effort, or money in innovation?

My experience suggests that they do not. Companies and entrepreneurs innovate in order to further their business goals and then file patents as an afterthought. Investors expect companies to file patents, but only because everyone else is doing it, and thus patents offer a limited deterrent value as cited above. In fact, venture capitalists investing in software companies are some of the strongest voices in favor of abolishing software patents. Here are some examples:

Chris Dixon, co-founder of software companies SiteAdvisor and Hunch and of seed-stage venture capital fund Founder Collective, says:

Perhaps patents are necessary in the pharmaceutical industry. I know very little about that industry but it would seem that some sort of temporary grants of monopoly are necessary to compel companies to spend billions of dollars of upfront R&D.

What I do know about is the software/internet/hardware industry. And I am absolutely sure that if we got rid of patents tomorrow innovation wouldn’t be reduced at all, and the only losers would be lawyers and patent trolls.

Ask any experienced software/internet/hardware entrepreneur if she wouldn’t have started her company if patent law didn’t exist. Ask any experienced venture investor if the non-existence of patent law would have changed their views on investments they made. The answer will invariably be no (unless their company was a patent troll or something related).

http://cdixon.org/2009/09/24/software-patents-should-be-abolished/

Brad Feld, co-founder of early-stage venture capital firms Foundry GroupMobius Venture Capital and TechStars, says:

I personally think software patents are an abomination. My simple suggestion on the panel was to simply abolish them entirely. There was a lot of discussion around patent reform and whether we should consider having different patent rules for different industries. We all agreed this was impossible – it was already hard enough to manage a single standard in the US – even if we could get all the various lobbyists to shut up for a while and let the government figure out a set of rules. However, everyone agreed that the fundamental notion of a patent – that the invention needed to be novel and non-obvious – was at the root of the problem in software.

I’ve skimmed hundreds of software patents in the last decade (and have read a number of them in detail.) I’ve been involved in four patent lawsuits and a number of “threats” by other parties. I’ve had many patents granted to companies I’ve been an investor in. I’ve been involved in patent discussions in every M&A transaction I’ve ever been involved in. I’ve spent more time than I care to on conference calls with lawyers talking about patent issues. I’ve always wanted to take a shower after I finished thinking about, discussing, or deciding how to deal with something with regard to a software patent.

I’ll pause for a second, take a deep breath, and remind you that I’m only talking about software patents. I don’t feel qualified to talk about non-software patents. However, we you consider the thought that a patent has to be both novel AND non-obvious (e.g. “the claimed subject matter cannot be obvious to someone else skilled in the technical field of invention”), 99% of all software patents should be denied immediately. I’ve been in several situations where either I or my business partner at the time (Dave Jilk) had created prior art a decade earlier that – if the patent that I was defending against ever went anywhere – would have been used to invalidate the patent.

http://www.feld.com/wp/archives/2006/04/abolish-software-patents.html

Fred Wilson, managing partner of venture-capital firm Union Square Ventures:

Even the average reader of the Harvard Business Review has a gut appreciation for the fundamental unfairness of software patents. Software is not the same as a drug compound. It is not a variable speed windshield wiper. It does not cost millions of dollars to develop or require an expensive approval process to get into the market. When it is patented, the “invention” is abstracted in the hope of covering the largest possible swath of the market. When software patents are prosecuted, it is very often against young companies that independently invented their technology with no prior knowledge of the patent.

http://www.unionsquareventures.com/2010/02/software-patents-are-the-problem-not-the-answer.php

In summary, software patents act as an innovation tax rather than a catalyst for innovation. Perhaps it is possible to resolve the problems of software patents through aggressive reform. But it would be better to abolish software patents than to maintain the status quo.

Sincerely,

Daniel Tunkelang

By Daniel Tunkelang

High-Class Consultant.

112 replies on “An Open Letter to the USPTO”

Let me turn this back to you: how are software patents making the world better? Let’s not get caught up in the semantics of a word like innovation. I’d like to understand why you see a world with software patent protection is better than a world without one. Even if that world could only exist in theory rather than in practice. I hope you at least agree that software patents in practice are a complete disaster.

Like

Naw, you already turned it back to me. I gave it a decent shot. I’m turning it back to you again. Basic research in industry computer science has been declining in massive ways for the past twenty years, correct? Are you saying that software patents caused this decline? That, if software patents didn’t exist, industry would be working on more basic problems again, innovating from the ground up?

Take set-oriented retrieval for example, one of those “hard” IR problems that no company seems to want to work on, because the payoffs are too long term. If software patents went away, would more companies start working on set-oriented information retrieval? If so, how exactly do you see that happening? What is it about patents that is stopping them from taking set-oriented retrieval seriously, right now?

Like

(And no, I don’t see the complete disaster that you’re talking about. If one cell phone manufacturer, coupled with an internet giant, can’t implement some twirl gesture (or whatever) on their smartphone screen, because someone already has a patent on that gesture, I don’t lament the state of innovation. Because I don’t care about the twirl gesture, and I can see a dozen other ways of getting to my information without having to twirl it (or whatever — just an example).

But some of the more difficult, long term problems. Like set-oriented retrieval. Like exploratory search. Industry has to be dragged, kicking and screaming, into working on those problems. And not because someone else already has the patent on the best solutions. No one has the patent, because the really difficult problems are still unsolved.

So I still maintain that patents act as a grain silo, there to protect whatever gets harvested. They might not necessarily “force” any company to start planting the seeds of exploratory search, for a long-term payoff. But at the same time, patents don’t *discourage* companies from working on those problems, either.

Do they?

And to me, those sorts of problems are the ones that I really want to see innovation on, anyway. I couldn’t care less about some twirl gesture on my smartphone. That’s not interesting innovation, anyway.

Like

I’m still not sure what you mean by “basic research” — but I think you’ve defined it as exactly the sort of work I accept as being sensible as the domain for patents — namely, work that people wouldn’t invest in without the assurance of a temporary monopoly on the high-risk results of their work. If that’s the case, then it’s a tautology that patents make sense for basic research, regardless of the domain.

But I don’t think software patents are being applied to basic research. Whatever software patents are achieving, I don’t think they are motivating anyone in software to make the kinds of bets you’d like to see. But they do drain productivity from lots of folks who are trying to make the world better through software.

I’m willing to concede the possibility that software patents aren’t making the world bad for you. But I don’t see how they are making the world good for you either. You argue that basic research in industry computer science has been declining in massive ways for the past twenty years. Clearly software patents aren’t sufficient. Why do you think they are necessary?

And for folks like me who aren’t primarily focused on “basic research” as defined above, software patents are a pure negative. They don’t serve to motivate intellectual or engineering investment, but they do drain collective resources. I don’t know whom they are making the world good for, other than patent lawyers, NPEs, and some incumbents who use patents (regardless of their validity) as an effective weapon. Oh, and companies that are now being valued for their patent portfolios.

At best you’ve convinced me that software patents don’t bother you. You haven’t convinced me that they create value for you.

Like

There are better definitions out there, but this one suffices: http://en.wikipedia.org/wiki/Basic_research

Pure research, basic research, or fundamental research is research carried out to increase understanding of fundamental principles. Many times the end results have no direct or immediate commercial benefits: pure research can be thought of as arising out of curiosity. However, in the long term it is the basis for many commercial products and applied research.

For example, five years ago I started working on collaborative exploratory search. People who explicitly share the same information need, and work together toward the shared satisfaction.. or perhaps even the shared definition and then the shared satisfaction.. of that need.

At the time, there was not an immediate, pressing need for this research. No one was online, clamoring for the ability to work together with their friends on a specific task. In fact, I was told recently by a friend at one of the major search engines that even to this day, their users don’t want or need to search collaboratively. So research on the topic is basic research, rather than applied research.

However, the world changes quickly. And if in 1.5 years a fundamental understanding shifts, and that basic research finds a home, then for sure the people (or companies) who pioneered the research and poured tons of money into it when it wasn’t profitable want to be able to protect their investment.

But I don’t think software patents are being applied to basic research. Whatever software patents are achieving, I don’t think they are motivating anyone in software to make the kinds of bets you’d like to see.

Really? We should honestly sit down and do some sort of scatterplot. The two dimensions of the plot should be number of patents filed, versus $$ spent on basic research. If software patents are NOT motivating people to make the kinds of bets I’m talking about, then we should expect to see little correlation between those engaged in basic research, and number of patents filed.

I can’t claim it for sure until we do the analysis, but anecdotally, companies like IBM that spend lots on basic research (e.g. Deep Blue had no immediate commercial application in 1997, Watson on Jeopardy had no immediate commercial application in 2011) also has one of the largest patent portfolios in the industry. And companies like Google that spend very little on basic research.. from the conversations I’ve had don’t even believe that basic research exists.. don’t have big patent portfolios. I’ll bet if you even looked at patents per year and spending per year, rather than totals, you’d see a correlation.

I’m willing to concede the possibility that software patents aren’t making the world bad for you. But I don’t see how they are making the world good for you either.

This is a really good read. He’s kinda harsh, and I don’t fully agree with his rhetoric. But it’s a good take:

http://thisismynext.com/2011/08/11/broken-patent-system/

You argue that basic research in industry computer science has been declining in massive ways for the past twenty years. Clearly software patents aren’t sufficient. Why do you think they are necessary?

Again, the grain analogy. Patents are the grain silo. Having a grain silo is not sufficient to be able to have enough seeds to plant future crops. You actually need to fill the silo with seeds. But, having a grain silo is absolutely necessary. If you are saving seeds, you can’t just leave them outside (where the weather will break them down) or sitting in the barn (where the mice will eat them). You want to keep the seeds safe, in the silo.

I agree, patents alone are not sufficient. But it’s a very large intellectual leap to go from saying that “you can’t plant a silo in the ground and grow corn” to saying that “silos aren’t necessary at all, to be able to protect seeds for future planting”.

And for folks like me who aren’t primarily focused on “basic research” as defined above, software patents are a pure negative. They don’t serve to motivate intellectual or engineering investment, but they do drain collective resources.

I’ve said a half dozen times that there is frivolity in many of the patents that are filed. But what about when there is not? What if a developer, hoping to make short term, applied profit, runs into the longer term, seed, basic research from another company? Are you saying that the newcoming developer not being able to duplicate previous efforts is somehow robbing the world of innovation? I can see how it would be frustrating for the individual. But is the system, the total amount of innovation as a whole, less? That’s why I think that it’s important to define how you measure innovation, if we’re to have this conversation.

At best you’ve convinced me that software patents don’t bother you. You haven’t convinced me that they create value for you.

And you’ve convinced me that software patents can be particularly irksome for individual players in the market. And for sure there is a cost associated with filing and defending them. And for sure it’s difficult to see value in what patent trolls do. But how much of the system as a whole, even the software system as a whole, do the negative effects compromise?

But you want to know how much value they create, for the system as a whole? Again, let me quote: “Pure research, basic research, or fundamental research is research carried out to increase understanding of fundamental principles. Many times the end results have no direct or immediate commercial benefits: pure research can be thought of as arising out of curiosity. However, in the long term it is the basis for many commercial products and applied research.

What is the value of a grain silo? What is the value of preserving needs for future years? Y’know, trying to answer that question is like trying to defend what the value of having unpolluted air and clean water for the next generation. How much money does unpolluted air make us right now? Aren’t all these regulations for cleaner energy technology robbing us of profits, bringing down the system, making it more difficult for the newcomer to get past certain barriers to entry? Heck, I used to be able to drill an oil well in my own backyard half a century ago. Now, it’s all locked up by these future-looking enviro-nuts, right?

No.

I can’t measure it, but there is value for future applications in being able to store grains of seed now. Again, if we’re not wise enough to store those seeds anyway, then it won’t matter. But that will be our fault, not the silo’s fault.

Like

What is the value of preserving needs for future years?

Correction: I meant to say, “what is the value of preserving seeds for future years”

You also write:
But they do drain productivity from lots of folks who are trying to make the world better through software.

And building a silo for the future drains productivity from people who could be out farming and harvesting now. And saving seeds for next year drains productivity of bread makers now.. they can bake less bread because they have access to less grain.

But for the system as a whole, I still maintain that we don’t want to eat all our seed corn. That productivity is not a monotonically-increasing function. That we need to take one step back to be able to take three steps forward. That we need to expend/”waste” some productivity now in building the silo, in order to reap the benefits of having more seeds that survive to plant next year.

Like

I suppose my research is applied because it is always motivated by problems I see in the real world. And usually by problems whose solution has near-term benefit. If we can partition the world such that software patents protect basic research but don’t screw up applied research, we have a deal! 🙂

Like

Y’know, I think this whole discussion boils down to what I was discussing earlier, the single global maximum vs the multiple local maxima.

If you’re a single global maximum-believer, then all these analogies to silo building and not eating our seed corn are, if you’ll pardon the continued farming analogy, hogwash. Why? Because in a world built with a single, monotonically-increasing hill, all you need is engineering. You just need to keep climbing that hill. Basic research would be unnecessary, because what questions are you really trying to answer? Are you trying to find out how tall the hill is? When there is a single global maximum, that doesn’t matter — because all you have to do is keep climbing. Any effort spent trying to estimate the size of the hill would be wasted time in actually climbing the hill.

So I can see why people who just want to engineer their way to the next taller and taller and taller step would view patents as a waste of resources.

But I don’t see it that way. I see the world as filled with lots of local minima. Some tall, some small, most with unknown heights.

Even in software.

Like

I suppose my research is applied because it is always motivated by problems I see in the real world.

And while I do have a lot of applied research, I’m excited and motivated by the deeper questions, the ones that will lead to tomorrow’s applied research. Remember, basic doesn’t mean “never” applicable. It means it opens up our understanding of the world to allow us to see..and then solve.. problem that we never would have otherwise seen if we were just focused on what we see in the short term.

And usually by problems whose solution has near-term benefit.

Which is not bad, at all, to be thusly focused. Every time I hear these “patent suck” discussions, though, it comes from the “build now” perspective. The McDonald’s perspective. The fast food, because I see hunger immediately perspective. Rather than the slow food, eat less but better, perspective. And I just want to make sure that latter perspective doesn’t get lost, isn’t thrown out completely.

McDonalds. Heh. How’s that.. insulting you with your own analogies 🙂 I hope this has come across correctly, that you see the good spirit with which I’m approaching this discussion.

If we can partition the world such that software patents protect basic research but don’t screw up applied research, we have a deal!

I think I mostly agree. One caveat: Today’s basic research patents become, in 5.5 or 8.7 years, tomorrows applied problems. It’s still possible that a software developer in 5.5 years will run into what was, half a decade earlier, a basic problem, and be frustrated by the patent holder. But again, that’s the whole point of protecting and encouraging innovation. That is bound to happen. Because without the basic research, that 5.5-year-later developer would never have gotten to that problem, anyway. They would have still been off, climbing some other, unrelated hill.

But what I do think is more problematic are patents that were filed with the intention of being radically short term. Patents wherein everyone is already on a particular hill, and someone starts throwing up fences all around the hill.

Differentiating this is going to be very difficult, but I think I can agree with you in spirit that I wouldn’t mind seeing some of the latter approaches going away, while still protecting the former.

Like

Show me basic researcher who has been “ripped off” by applied researchers infringing on his or her software patents, and I’ll be sympathetic. I understand the problem in theory, but I haven’t seen in in practice.

I think we almost have a truce. 🙂

Like

Interesting. I’m skeptical that integrating information from different sources qualified as basic research in the late 1990s. Unfortunately I’m not allowed to go reading patents on my own, so you may win this round by default.

But I did find this:

http://www.reuters.com/article/2010/04/15/us-google-yahoo-xerox-lawsuit-idUSTRE63E6N320100415

Without knowing the merits of any of these cases, I’m left with my baseline assumptions that software patents are only good for transferring money from software companies to patent lawyers.

Like

In my last comment I linked to a good discussion which makes the point that there’s no special distinction for “software patents” and that you’ll need to separate out the definition. I fear that all the focus on “software patents” just proxies for “patents in my own area of work” that may well be paralleled by unhappy people in other areas. We all know from school that algorithms can be implemented in many ways besides software. If I etch a chip to implement my algorithm, does that make it patentable? If I build it into a tinkertoy computer, or a “difference engine” with pistons and gears, is that patentable?

We have several hundred years of evidence that patents are a good thing. I would focus on what’s gone wrong with the way patents are awarded (and trolled, per my previous post) rather than just abolishing them. In particular, we need better standards of “obviousness”. Also, given the modern pace of innovation I think that the lifetime of patents should be significantly shortened.

Like

David, I understand the challenge of isolating software patents as a special case. My point isn’t about software per se, but rather about the net effect on incentives in areas commonly understood to be covered by “software patents”.

As for extrapolating from good things of the past, there are lots of ways to do that. How about we go back to the definition of patentability that was accepted pre-State Street? Or the thousands of years of technological progress before we had patents at all?

I accept the possibility that reform could be better than abolition. But I maintain that abolishing software patents, as the term is commonly understood, would be far better than the status quo. And I think it is more achievable than meaningful reform.

Like

I simply don’t believe it is possible to draw a meaningful distinction between “software patent” and “regular patent”. I’m all in favor of tightening the rules for patentability (e.g. higher standards of obviousness) but don’t think you can do it based on the subject matter. As is nicely pointed out in https://thisismynext.com/2011/08/11/broken-patent-system/ , your “pre State Street” was “an alarmingly stupid period where everyone was forced to pretend software magically transformed general purpose computing hardware into specialized patent-eligible machines.” “Every invention is “just math” when it comes right down to it — traditional mechanical inventions are really just the physical embodiments of specific algorithms. Consider the TurboTap long-necked draft beer nozzle, which was developed by a University of Wisconsin student named Matthew Younkle and granted US patent #7,040,359 — it pours beer faster and with less foam because of its long shape and internal structure. (I’ve conducted extensive… testing.) Isn’t that just a clever application of fluid dynamics? ” Y Combinator co-founder Paul Graham’s 2006 essay “Are Software Patents Evil?” remains one of the best holistic analyses of the software patent issue I’ve ever read, and it opens with “if you’re against software patents, you’re against patents in general.”

Like

Interesting. I’m skeptical that integrating information from different sources qualified as basic research in the late 1990s.

Ok, here is another example: In 1993, Yamaha Research came up with (and patented) the very first ever music fingerprinting work. This was 1993. The mp3 didn’t even exist yet (wasn’t created by Fraunhofer). The mass market was not ripping their CDs into .wav format, etc. So the research was definitely ahead of its time, and pre-real world problem. That is, it was basic research.

Fast forward to 2000, and Shazam creates a service that lets you do digital fingerprinting of music over your cell phone, an idea cool enough that when the first iPhone commercials started coming out in 2007, they featured the Shazam app on national television. Clearly, by then the idea of musical fingerprinting was very “applied”.

On top of that, around the same time (mid 2000s) Google buys YouTube, which is filled with copyrighted music, for which they are sued by Viacom. So they needed, and eventually licensed and from what I heard, then created on their own, an implementation of music fingerprinting. Again, the patent had moved into the applied realm.

Now, I don’t know if Yahama ever tried to enforce its patent, or if all the appropriate licenses were paid by everyone. But your question, if I understand it, wasn’t just about examples of applied researchers who “stole” from basic researchers. It was about applied researchers who later came into an area that had already been covered by basic researchers, which basic researchers had created the work at a time when there was no immediate, known problem or application. Because I get the sense that you believe it never happens.

The 1993 Yamaha music fingerprinting work is exactly that example.

Like

@David: I really like that example with the beer nozzle.

@Daniel: Speaking of music, you like to quote the example of the internet, how you believe that if HTTP had been patented, we wouldn’t have the wonders of the web (http over tcp/ip) today.

Well, let’s take a look at an actual example, rather than a hypothetical: The mp3.

The mp3 format *was* patented. And despite the existence of alternative audio formats and compression algorithms, and despite fraunhofer’s and thompson’s enforcement of their patents (hundreds of millions of $’s collected), not only has the mp3 continued to be a wide-spread, mass market success (do you personally have more songs encoded in mp3, or in vorbis?), but it helped major companies rise to prominence. Apple, for example, rebuilt its empire (re-rose to prominence) largely on the back of the mp3. Sure, it later added it’s AAC proprietary format. But the ipod started and rose via the mp3, and still plays it today.

So how has a patented mp3 hurt innovation?

My point isn’t about software per se, but rather about the net effect on incentives in areas commonly understood to be covered by “software patents”

Which is again why I want to know how it is you’re measuring the net effects. How you’re evaluating the system as a whole.

Like

Or the thousands of years of technological progress before we had patents at all?

Sure, but wouldn’t you say that the last 200 years have been somewhat of a hockey-stick with respect to the innovation curve? That technology has always progressed, but that acceleration has increased in the past 200 years?

And doesn’t that generally coincide with the formation of legal patent rights?

Correlation is not causation, but it’s still worthy to note that both the hockey stick increase and patents themselves are significantly overlapped.

Like

In particular, we need better standards of “obviousness”. Also, given the modern pace of innovation I think that the lifetime of patents should be significantly shortened.

I agree with you, David, about needing a better standard of obviousness. But I’m not so sure about the shortened lifetimes. When someone really is early to market, doing basic research, there can be a significant gap between the invention and the application, between when basic becomes applied. For example, with the music fingerprinting work in 1993, it took 7 years before that became commercially viable. But even then, Shazam only took off in Europe in 2000. In the U.S., it took a little longer..another 5-6 years. 7+6 = 13, and the lifetime of the patent is.. what.. 17 years? If patents were shortened to 5 years, then Yamaha wouldn’t have been able to see any benefit in its work.

Like

David, I’ve read Nilay Patel’s and Paul Graham’s posts and am happy to critique them.

Patel cites PageRank as an example without noting that Google has never enforced this patent (which undermines his argument in that same section that “the patent system encourages innovation, actually: it forces inventors to build alternative ways to do things”). He also cherry-picks patents with useful technical disclosures. Having looked at lots of patents related to software, I’ve found that most of them sail through the patent office without disclosing such “advanced work”. And, as Patel points out, the payload of patents is in the claims, which can be quite broad even when the specification phones it in as far as disclosure. Where I agree with Patel is that we need to “try to find a balance between protecting the research and investment it takes to push the industry forward”. Some of the changes he proposes would be steps in that direction. But they do not preclude having constraints on patentability that would obviate what most of us call “software patents”. And finally, saying that everyone else is “throwing irrationally misguided temper tantrums” is patronizing at best — he should recognize that people can rationally disagree with his perspective.

Graham reduces the problem to the definition of obviousness, e.g., that the one-click patent was overly broad. He also has some gems:


When a company starts fighting over IP, it’s a sign they’ve lost the real battle, for users.

A company that sues competitors for patent infringement is like a defender who has been beaten so thoroughly that he turns to plead with the referee. You don’t do that if you can still reach the ball, even if you genuinely believe you’ve been fouled. So a company threatening patent suits is a company in trouble.

If a startup wants to grow into a big company, they should apply for patents to build up the patent portfolio they’ll need to maintain an armed truce with other big companies. If they want to get bought, they should apply for patents because patents are part of the mating dance with acquirers.

And finally:


Frankly, it surprises me how small a role patents play in the software business. It’s kind of ironic, considering all the dire things experts say about software patents stifling innovation, but when one looks closely at the software business, the most striking thing is how little patents seem to matter.

Graham only worries about patent trolls. I think he’s right that trolls are the biggest problem, but his perspective his limited. He says “I can’t think of a startup that avoided working on some problem because of patent trolls,” so he must not be familiar with Like.com vs. Modista.

Both of these guys have some valid points, but I don’t think either proves the case that ““if you’re against software patents, you’re against patents in general.”

Like

Patel cites PageRank as an example without noting that Google has never enforced this patent

So is your argument that if a patent is never used to club someone else over the head, that it had no value? That somehow it isn’t worth anything, because no one used it to club someone else over the head?

Again, I have to ask how you’re measuring all this.

Like

If a tree falls in a forest and no one is around to hear it, does it make a sound?

What protective value do patents have to people who don’t enforce them? Maybe I’m being naive, but I thought the whole point of patents was to give the inventor or assignee exclusive rights to the invention for the period in which the invention is protected. What’s the point if the inventor or assignee never exercises those rights?

Of course the answer tends to be that patents have defensive value to deter patent infringement lawsuits from others. But that’s creating a negative-sum arms race, which is a collective waste of resources.

Like

What protective value do patents have to people who don’t enforce them?

You’ll have to ask those people, as to why they don’t enforce them. But not everyone doesn’t. In the example I already have you, the holders of the mp3 patents have successfully collected hundreds of millions of dollars in “enforcement”.

And mp3 is still the dominant compression format today. Kicked off a a revolution in music sharing and appreciation. Saved Apple. All while being patented.

What more do you want?

Like

What protective value do patents have to people who don’t enforce them?

Additional thought: There are a myriad of reasons why not every company would enforce every single patent they own. One is a cost/benefit analysis: The cost of doing the enforcing might be larger than the benefit they get from it. They might not have known what this benefit would be when they filed the patent, because the market hadn’t come into full flourish yet. But maybe the market didn’t become as big as they hoped.

Or another reason is that because technologies changed, they might have discovered an invention that worked even better than the one that they patented. Take the pagerank example again, the one that you describe as a tree falling in the forest. When was that patent granted by the USPTO? 2004, correct? Well, look at what Jeremy Zawodny had to say about PageRank in 2003:

http://jeremy.zawodny.com/blog/archives/000751.html

Google might not have been using PageRank anymore, because the web itself changed too much as spammers got wise and started creating link farms. And if PageRank no longer had value, and Google knew it, why would it waste time and money enforcing the pagerank patent against others? If anything, it would be in their own strategic interest to NOT stop their competitors from trying it out, and then of course failing because of the spam issue.

David Karger is right.. technology does change quickly. So it could be that by the time PageRank was actually granted, the web changed enough that it was no longer useful.

But that’s not pagerank’s fault, nor is it the patent system’s fault. It’s a dynamic world. And something that was once valuable became less so. That’s just the way it is.

But that doesn’t mean we should abolish patents, either. Because while some patents go stale very quickly (pagerank), other patents stay fresh for a long time (Yamaha’s music fingerprinting). Will we always know ahead of time which are which? Of course not. No one has that crystal ball.

Basic research is a risk. Patenting that basic research is a risk. Not every risk pays off. You can build a silo to store your grain, and then still never get to plant it because the Mississippi floods your field during planting season. That doesn’t mean you stop building silos.

And @David, that’s also why I don’t mind a longer patent duration. Because either technology changes so quickly that it doesn’t matter if you have the patent or not — everyone is going to be off climbing different hills — or else you’ll need the extra time for technology to catch up because with your basic research you were so far ahead (e.g. Yamaha 1993 music fingerprinting).

Like

I’m not suggesting that companies need to enforce all of their patents against everyone who infringes on them. But a regime where many (most?) software companies pursue a lot of patents but only “use” them defensively strikes me as a travesty of the intent of the patent system. And I don’t see how Patel addresses this reality. Graham addresses it well — and I think his piece largely supports my arguments.

And speaking of MP3 and patents, I’m not sure the overall story is all that pretty:

http://en.wikipedia.org/wiki/MP3#Licensing_and_patent_issues

Like

I read that mp3 wikipedia page, too. You’re right, it’s not pretty. It’s messy.

But you know what that implies? It implies exactly what I’ve been saying: patents have value. It’s not just a defensive drain on the economy. When you innovate, and do research, and patent your research, you’re creating real value.

And that real value can both change the world (it’s undeniable what the mp3 player did to help Apple, for example), and bring innovative payoff to the inventor(s)/innovators.

Like

I think we are back to our fundamental disagreement. You seem to think that the benefits of patents to the software industry — specifically the incentives that patents provide for investing in basic research — outweigh the costs. I think the costs far outweigh the benefits.

We’ve been exchanging data points and citing other’s analyses and opinions, but I don’t think either of us has shifted from our original positions. I’m ready to accept that I can’t convince you. And as a bonus, the status quo is in your favor. Though I’m working to change that. 🙂

Like

Without knowing the merits of any of these cases, I’m left with my baseline assumptions that software patents are only good for transferring money from software companies to patent lawyers.

But look, you categorically declared that software patents are only good for transferring money between lawyers. I’ve tangibly demonstrated that this is not the case. So how can you not change your mind?

You quoted Chris Dixon:

Ask any experienced software/internet/hardware entrepreneur if she wouldn’t have started her company if patent law didn’t exist.

And I have to ask: Is starting a company how you define “innovation”? To me, that’s just one, very narrow, entrepreneurial definition. But that’s not the whole of innovation.

You’re concerned about innovation over the system as a whole, too, and not just whether one or two people here are there have been prevented from starting companies, correct? Do you accept that a few people here and there might not be “allowed” to start companies, and yet the net innovation in the system as a whole might be positive?

Again, I’m asking how you measure this.

Like

My experience leads me to conclude that the only beneficiaries of the current regime are patent attorneys and NPEs. All other parties would be benefit if software were excluded from patent eligibility. In particular, I don’t believe that software patents achieve either of the two outcomes intended by the patent system: incenting inventors to disclose (i.e., teach) trade secrets, and encouraging investment in innovation.

It’s not just audio codecs, either. Lots of patents are held on the video codecs that get used all the time by electronics manufacturers, DVD makers, etc. And by association, that has benefit for the movie studios, actors, carpenters, and so on.

http://en.wikipedia.org/wiki/MPEG-2#Patent_holders

Many of these patents are now expired, but that only goes to prove my point. Many of these were filed in the early 90s, before there was a consumer market for digital video. Everyone was still using VHS tapes. So these companies were doing basic research. Furthermore, they patented their basic research. At this point, you would lead me to believe that this would have stopped the market from going forward, because small companies that relied on that software to bring forth their products would have folded, right? Well, look at the sheer number of electronics manufacturers that have sprung up over the past 20 years, making all sorts of DVD players and related peripherals. I count 170 of them:

http://en.wikipedia.org/wiki/List_of_DVD_manufacturers

Because the heart of the digital video system is the software, not the hardware, we must categorize these companies as software companies, or at least companies with a undeniable root in the software industry. Without software, a DVD player would be nothing.

And yet despite the patents, DVDs took off. And it benefitted not only the companies that put the basic research into creating the software codecs (not just the lawyers), but it also got the companies to fully disclose those coded algorithms. If you don’t teach people *exactly* how to encode and decode your interlaced video, they’re going to build a non-working DVD player. And that’s no good for anyone. So your argument about disclosure not happening also doesn’t ring true.

So there were benefits to the patent holders, to the patent licencees, to the movie studios who got to sell more of their products, often twice and people rebought on DVD what they already owned on VHS.

So when we calculate “net” benefit of software patents, we have to add in not only value of Apple, and it’s rebirth through the mp3/ipod, and not only all the digital music companies that have sprung up around this technology, but we also have to count video, DVD makers, movie studios, etc.

I’ll say it again: in 1991 when many of these patents were filed, there was no substantial market in digital video. There were no small guy entrepreneurs going out and selling their digital video software, worried about infringing patents, because there was no market. Existing companies had to put basic research, and research funding, into developing these codecs, figuring out how to make the digital software work, and work well. Thus, patents definitely incentivized this basic research, as many of these companies now collect royalty on every DVD sold, because of the software embedded therein. (Note also that the patents didn’t stop DVDs from achieving mass market success, either. So that’s a non-argument.)

Remember, there is more to software than the Web. A lot more. Maybe in the Web subsubsector of the software industry, there are more entrepreneurs that get shut down due to patent issues than in other sectors of the software industry. Again, I said maybe. I still want to know how you measure it. But even if true, the Web is not all of software.

Like

We’ve been exchanging data points and citing other’s analyses and opinions,

Actually, I felt like I’ve done a fairly effort-filled job of presenting you with my own analysis, and not relied on the analyses of others for the core of my arguments. Yes, I did quote that same analysis that Karger quoted. But I gave you many other examples, ones that directly addressed some of your objections. Examples and analyses such as:

(1) characterizing the innovation/patent landscape in machine learning terms, with global vs. local maxima. That wasn’t someone else’s analysis, that was my own analogy, and was an honest attempt to characterize how we each saw the space (me:local maxima, you:global maxima)

(2) extending the “eating our seed corn” analogy. That core analogy isn’t mine. But referring to patents as silos that protect the seed corn, explaining how that means patents are NOT sufficient (having a silo doesn’t force you to save your seed corn) but ARE necessary (if you are going to save your seed corn, you’re going to have to have ’em).

(3) Busting the “patents are only good for lawyers” claim by showing how patents have not only encouraged investment in basic research, but have spawned new industries (DVD/digital video, mp3 players) and revitalized old companies, ones who didn’t hold the patent (Apple) in the process.

I’ve worked very hard to make most of my points, free of the analyses of others. And I feel I’ve done a fairly good job of shooting down the absolutism in the claims that software patents are only bad. Now, a couple of times you’ve softened that absolutism, and switched from words like “only negative” to “well, on net balance it’s negative”. But again, I keep asking how you want to measure that. How you want to sum up all the positive and negative things. I’m happy to do that with you. I’ve even suggested one way of doing it:

We should honestly sit down and do some sort of scatterplot. The two dimensions of the plot should be number of patents filed, versus $$ spent on basic research. If software patents are NOT motivating people to make the kinds of bets I’m talking about, then we should expect to see little correlation between those engaged in basic research, and number of patents filed.

But we don’t have to only do it that way. We can measure it other ways. Propose something.

Because if you’re going to change things, you can’t just talk about web software 2-team entrepreneurs, about how patents don’t stop two guys from starting a little company. You have to talk about the sum total of everything. Those two guys as a (perhaps) negative, the re-blossoming of Apple as a positive, etc. etc.

So again, let’s do it.. let’s measure it.

Like

I’ll concede my absolutism. I’ll even concede that I’m concluding “net negative” by generalizing from my experience and that of others to establish net effect. So, while I believe that generalization from experience is valid, but I understand if you or others are unconvinced.

Unfortunately I don’t have the time to conduct the necessary research on top of my day job. I’d love to see a study like what Paula Samuelson did for entrepreneurs, but including all software researchers and developers, i.e., those who invest their lives and energy into creating the things patents are supposed to protect. If such a study contradicted my perspective, I’d adapt to the new information.

And I am perhaps using the term “innovation” more broadly than you to mean any progress we can attribute to advances in technology. That is, I am conflating “research” and “development”. As far as I can tell, none of these terms is precise, but I hope we have enough of a shared vocabulary to understand each other on good faith rather than quibbling over semantics.

Responding to your other points:

(1) You’re right that I don’t see software — web or otherwise — as an area where long-term, high-risk investments play a significant role. And even if they did, I’m not convinced that patent protection for software encourage such investment. Both of these may come down to differences of opinion.

(2) Granted that insufficient doesn’t imply not necessary. I just don’t buy the analogy.

(3) At best you’re showing me correlation but not causality. I grant that there are patents in pockets of the software industry, but I don’t see the causal chain. Apple re-blossoming because of MP3s perhaps, but specifically because of patents? I hope you understand that I am unconvinced by this speculation.

I’m content to agree to disagree. You want hard data I can’t provide. But my inability to provide that data does not change my belief. In the mean time I don’t see how we’re making progress. I know you’re working hard to convince me — I hope you see why I’m not convinced. Conversely, I understand if you need evidence I can’t provide to convince you. I’m willing to accept the impasse.

Like

As far as I can tell, none of these terms is precise, but I hope we have enough of a shared vocabulary to understand each other on good faith rather than quibbling over semantics.

As a quick aside: Let me just say that statements like this is why I like arguing with you. I very much see a good faith effort from you, and I hope you see it from me.

Like

Apple re-blossoming because of MP3s perhaps, but specifically because of patents?

Apple re-blossomed because people like Fraunhofer were motivated by patents to invest in basic research, and create a high-quality, low bit footprint codec, with the promise that, if successful, could be patented.

That patent promise led to basic research (again, no market existed yet; they weren’t actually solving a problem that was motivated by iTunes customers, right?), which led to the invention, which led to the innovation, which led to an Apple rebirth.

Same story with digital video. Patents motivated companies to innovate in the digital video arena. Those patents were secured, and then rather than squashing both research and development, a whole industry then blossomed. Developers everywhere. 170 DVD makers alone, not to mention all the ancillary industries doing all the movie studio encoding.

I know you’re working hard to convince me — I hope you see why I’m not convinced.

I can agree that we’re at an impasse, but frankly I don’t see why you remain unconvinced. I agree with you that patents don’t help every individual, all the time, in every situation. But I don’t understand how you go from that to wanting to abolish all software patents, altogether. Even without the aggregated statistics that I’d like to see, I guess I don’t fully understand the reasoning.

Impasse it is, I guess. 🙂

Like

By the way, in response to correlation vs. causality that I outlined in the mp3 case, you wrote: At best you’re showing me correlation but not causality. I grant that there are patents in pockets of the software industry, but I don’t see the causal chain. Apple re-blossoming because of MP3s perhaps, but specifically because of patents? I hope you understand that I am unconvinced by this speculation.

Well, let me lay to rest your unconvinced-ness by telling you that it’s not speculation that led to patents motivating Fraunhofer to engage in the basic research to create the mp3. Here is what Fraunhofer itself says about patents:

http://www.fraunhofer.de/en/about-fraunhofer/business-model/patents-licenses/

In order to maintain a competitive lead that is based on innovation, the technical solutions have to be protected. Patents play an increasingly important role here since they protect know-how and make it into a commodity that can be exploited commercially.

So patents are an extremely important motivator for these guys. And it was these guys, not two entrepreneurs in a garage, that created the mp3, kicking off the revitalization of an industry that is still going strong today. In spite of the fact that mp3 is patented.

Like

My thoughts..

Well, let me lay to rest your unconvinced-ness by telling you that it’s not speculation that led to patents motivating Fraunhofer to engage in the basic research to create the mp3

That doesn’t convince me. Wouldn’t Fraunhofer be a little biased because they made a killing off of mp3? And wouldn’t basic research on audio now be stunted because only Fraunhofer can work with the most widely used audio format unless you have deep pockets?

The research that made mp3’s possible was all done before the patent.
Auditory masking was discovered in 1894.
Audio compression algorithms were in IEEE in 1988.
Both ocf and pxfm preceded mp3.

Audio was popular before mp3’s as seen in tapes and later cd’s. CD’s were cumbersome as audio libraries grew. The market was moving towards digital audio (and everything). At the time computers and portable devices could not handle the bandwidth (cpu) and space that it took to store an audio file in a digital format. Thus an audio format needed to be able to be processed quicker by the cpu and take less room to store. Digital compression was already headed in this direction (before mp3). I see no concrete evidence that the mp3 would not have happened.

Same story with digital video. Patents motivated companies to innovate in the digital video arena.

Same with DVD’s. Digital video was already done in 1986 and digital cameras were in the late 1970’s. The first digital format was expensive and again compression was needed to be able to be run on more commodity hardware. I see no evidence that suggests that patents encourged digital video to be created.

I do notice that MPEG is in control of all of the common formats. But how can you say this is because they were the innovators? If they get kickbacks from the movie and music groups or are the sole provider of all video an audio, how can anyone else innovate? If I make a new video or audio product I’m at the sole mercy of who already owns the lionshare of content. What if I come up with the smell codec and patent it. What stops the MPEG from coming up with their own smell codec that uses different mathematical processes to do the same thing as mine. Who’s codec will win? And if they patent their process and force everyone to use their format because they have agreements with big companies, how can I use my software to compete?

I don’t see digital audio and video as some elaborate never done before process. It was an iterative work controlled by the major industry players. Also increasing performance on commodity hardware is done all the time, using mathmatical formulas to accomplish the task in computer science.

Like

I’m only half-following this debate (it seems that both sides are bearing strong opinions but not much data) but certain exaggerated statements tend to catch my attention. To declare that apple re-blossomed because of patents is to assign way too strong a causal link. Plenty of scientists (e.g academics) have worked on all sorts of compression techniques with no thought of patents. If mp3 hadn’t been invented something else would have. Maybe not as good, but good enough to enable a digital music ecology.

I’m happy to consider that the patent system may have encouraged development of a better digital encoding scheme sooner, but not that it made all the difference.

Like

That doesn’t convince me. Wouldn’t Fraunhofer be a little biased because they made a killing off of mp3?

Did Fraunhofer do research before the creation of the mp3? Did they patent their research before the creation of the mp3? I think the answer to both is yes. Fraunhofer has like 18k employees, I believe. mp3 is just one of hundreds if not thousands of research projects they’ve got going on. And the 100M they made off of mp3 is a drop in the bucket compared to their regular budget. So no, I don’t think the success of mp3 preceded Fraunhofer’s philosophy, that of patents being a major motivator to doing research. I think Fraunhofer’s philosophy preceded the mp3.

And wouldn’t basic research on audio now be stunted because only Fraunhofer can work with the most widely used audio format unless you have deep pockets?

Why would basic research on audio be stunted? You can always use 16-bit 44 Khz PCM, uncompressed audio ripped straight from the CD. Or you can use Ogg Vorbis. Or something else. Fraunhofer’s patent doesn’t stop you from doing basic research on audio.

I don’t see digital audio and video as some elaborate never done before process. It was an iterative work controlled by the major industry players.

All of research is iterative. The inventions that come before help support the inventions that come later. No one could have invented the electron microscope until someone discovered that electrons existed. Everything iterates on everything else.

So how does that change the fact that Fraunhofer invented something new? How does that change the fact that Fraunhofer innovated?

The question is not whether the invention is elaborate or not. Yes, it has to be non-obvious. Saying that it is obvious that people wanted smaller digital file sizes is not enough to invalidate the patent. I also want a flying skateboard. But to actually make one work involves some non-obvious inventing. Same with mp3s. The solution of how to get quality audio with 10x reduction in filesize is non-obvious.

Correct me if I’m wrong, but what I think you’re implying is that the whole industry was moving toward a compression format solution (rather than faster cpus and larger disks), so what Fraunhofer did wasn’t really anything different than would have been invented by someone else anyway.

Maybe. Maybe. But so what?

Fraunhofer, by being committed to doing research where markets really did not exist yet, beat the curve. That willingness should be protected.

More importantly, it’s a fact that Fraunhofer was and is incentivized by patents to do research, something Daniel said he didn’t think existed.

I mean, if your objection is that mp3 is like things that came before, then you probably also objected to the PageRank patent, because it was really just a successor to Eugene Garfield’s citation index, right? If so, it sounds like you’re just against patents altogether, because you don’t believe that anything is new under the sun. That’s an extreme position that I can’t really address.

Like

To declare that apple re-blossomed because of patents is to assign way too strong a causal link.

Ok, how is this: Fraunhofer itself categorically declare(s/d) that it was incentivized by patents to do research.

There were other compression techniques, but those compression techniques were either poor in audio quality, too big (not compressed enough) or too complex to implement (code complexity does matter!)

Fraunhofer, through diligent research, motivated by patents, created the mp3, a technology that hits the sweet spot between quality, size and complexity. A real invention, just the same as that beer nozzle invention. Beer nozzles already existed, right? And yet you, yourself, David, lauded the invention of this beer nozzle that just really worked.

So how is that any diffrent from creating an audio compression technology that hits the sweet spot, that really works?

And as a result of having something that really worked, it kicked off a whole revolution in mp3 players, file sharing, etc. That meant it was there for Apple to take advantage of, at just the right time.

If what you’re saying is that it was only coincidence that Apple was ready at that time to take advantage of this new patented mp3 technology, I will grant you that. That might be lucky coincidence rather than planned causality. But the point is that mp3 still took off, despite the fact that it was patented (in other words, it didn’t “hinder” anything, as Daniel thinks patents do).

And, while it also may be true that plenty of scientists worked on other compression techniques without the thought of patents, Fraunhofer itself says that it’s motivated to do its research because of patents. That’s just an undeniable fact. It’s right there on their website.

Like

If mp3 hadn’t been invented something else would have. Maybe not as good, but good enough to enable a digital music ecology.

Let me also note that it’s not just a matter of “something else would have”. It’s a matter of a person or company being willing to be out ahead of the curve and create something in an area where few people have a need, at least at the moment it was created. If someone else would have created something similar, they would have created something similar… later. Otherwise the problem of quality, size and complexity would have been solved sooner, by someone else. It wasn’t. Fraunhofer’s patent motivation therefore got us there sooner. It advanced technology faster. And faster advancement now means faster advancement for the future.

Like

I don’t see any particular reason to believe (or disbelieve) what Fraunhoffer says—certainly one could ascribe their statement to a belief that the current patent system gives them an advantage over their competitors, which is independent of whether or not the patent system is good for society.

On the other hand, I accept the possible rightness of Jeremy’s assertion that patents may have led to faster development of a better solution—my previous comment was objecting to the earlier “black and white” implication that patents were necessary for digital music to happen at all.

Like

my previous comment was objecting to the earlier “black and white” implication that patents were necessary for digital music to happen at all.

Fair enough. I was reacting more to Daniel’s assertions that patents aren’t a motivator, and produce a net negative. And directness of Apple or not, the mp3 was both patent-motivated and has not been a net negative. In fact, it overall has been such a positive that it balances out a lot of little negatives. That’s what I believe the patent system does.. encourages and rewards that kind of risk.

BTW, David, let me just humbly let you know not to mistake any of my intensity in these discussion for anger, upsetted-ness, or similar emotion. Daniel knows me, so he can hear my tone in our discussion. You and I don’t know each other, though, so I have a greater chance as coming of as…shall we say…overblown. Well, maybe I am, anyway. But please know that, intense or not, I approach this like a spirited back-of-the-pub discussion. Complete with handwaving and friendly eye rolls and frowns. If that makes sense.

Like

Let me second Jeremy’s comments about the mutual civility. Anyone who disagrees with me is obviously wrong (a corollary of the axiom that the blog owner is always right), but that’s what makes this discussion interesting!

Seriously, I appreciate the way that even the most intense discussions here are civil and respectful. And that the participants, who are people I deeply respect for their professional achievements, feel comfortable using their real names to debate controversial topics.

I do realize that not everyone here knows each other personally, so I hope that you all give each other the benefit of the doubt that everyone is advocating their positions in good faith.

Like

Plenty of scientists (e.g academics) have worked on all sorts of compression techniques with no thought of patents.

One more minor point, just to re-contextualize the discussion: We’re talking (I think — correct me if I’m wrong Daniel) about industry research. Private funding.

When you’re talking about an NSF grant, public research, then I absolutely agree with you that scientists work on these sorts of problems without thought of or motivation of patents. But in that case, the incentive structure is different. Conference and journal papers are the currency, and the payoff is wider respect and a higher likelihood to get more NSF grants. So patents aren’t the motivation, but being the first to publish something is.

However, if we’re talking about an industry scientist, one who is not applying for public monies, then there are two sources of motivation: (1) The creation of a new product to meet a market need, and (2) The patenting of a new technology, so as to be protected when the market for that technology finally arrives.

In my understanding, Daniel believes that (1) either is or should be the only source of motivation. That all of innovation is due to both researchers and developers addressing only problems that exist at the moment, in the current market, driven by real-world user needs. And I have a strong reaction against that approach. I think society (and industry as part of society) needs to have some sort of structure wherein industry itself can be future-thinking, and work on problems for which the market might not yet exist, and in fact might never exist. One would hope that the market eventually arrives, but that arrival is not certain. So in that case, the only way to justify the ROI on longer-term invention and innovation and deeper problem-solving is to be able to protect what you’ve invented, for some period of time, to make the risk worth it. And that’s what patents are.

Clearly, though, patents aren’t enough to “force” deeper research innovation. But my position is that they’re still necessary, that without them you’ll get even less industry research, less work on innovations that create future markets from scratch.

Which I think Daniel is fine with, because he doesn’t see any for innovation in non-immediate-need driven arenas anyway. But I’m just making it clear where and why I’m coming from.

I’ve tried reconciling our viewpoints in an analogy, but I don’t completely know if it works or not. The analogy is to machine learning, and iterative hill climbing with global or local maxima.

If the landscape upon which innovation rests is globally convex, then all of innovation can be solved more on the development side of R&D. All you have to do is constantly engineer your way to better, current-user-need-driven solutions and you’ll eventually reach the global top. In that case, Daniel is right and I’m wrong, because patents only get in the way of everyone’s climb to the top.

However, if the landscape upon which innovation rests is locally convex, if there are lots of local minima, then it would be foolish if we were all climbing the same one hill. The only way the net total innovation is going to be positive is if we have some people striking out across the barren valleys, to find other hills to climb. That’s the research side of R&D. The longer term, exploratory thinking. And in that case, patents protect you. Because as the single inventor is climbing a newly discovered local hill, and finding it to be taller than what everyone else is climbing, that’s going to set off a gold rush (thar’s gold in them thar locally convex hills!) and the discoverer of the hill will quickly be crowded out by the masses, or by some big corporation with more resources who can do the development side of R&D faster. In that case, you NEED patents to protect the inventor. Which is my position.

So the question boils down to whether the landscape is globally or locally convex.

Like

I do realize that not everyone here knows each other personally, so I hope that you all give each other the benefit of the doubt that everyone is advocating their positions in good faith.

Absolutely.

Now, do we call it quits, or do we break the 100 comment barrier?

Like

I do realize that not everyone here knows each other personally, so I hope that you all give each other the benefit of the doubt that everyone is advocating their positions in good faith.

Definitely! Good discussion breeds broader perspectives!

So the question boils down to whether the landscape is globally or locally convex.

I’m not so sure that it is so cut and dry, but maybe.

Fraunhofer itself says that it’s motivated to do its research because of patents

I can believe they are motivated by patents. I just don’t necessarily believe that we get more innovation because of patents and maybe that is a different disagreement (not the local or global landscape).

Everyone was still using VHS tapes. So these companies were doing basic research. At this point, you would lead me to believe that this would have stopped the market from going forward, because small companies that relied on that software to bring forth their products would have folded, right?

I don’t think patents stop the market from going forward, I just believe they slow down progress. How can you tell that companies didn’t fold because of the patents. For every 1 company that succeeded, 20 companies could have folded. Is there data to prove that no companies folded because of the success of a digital format? I know of things that have been hindered because of them (I just found this site and am curious as to what else they say):

http://en.swpat.org/wiki/3d_graphics_patents

I have run across quite a few cases in 3D software, image processing, audio processing and others where patents delayed technology from progressing. Also look at what happened with video codecs and the W3C. Standards were delayed because of patents because the W3C wanted to use something free of patents so that information could be shared freely. I’m not positive but didn’t the internet come about without the assistance of patents? And wasn’t the boom of mp3’s mostly due to the internet?

There were other compression techniques, but those compression techniques were either poor in audio quality, too big (not compressed enough) or too complex to implement (code complexity does matter!)

Fraunhofer, through diligent research, motivated by patents, created the mp3, a technology that hits the sweet spot between quality, size and complexity.

True, they did research and were motivated by patents. But I don’t think that without their help there would be no mp3 like there is today. I also don’t think that their techniques were profoundly better. Prof Dieter Seitzer was doing music compression over phone lines in the early 1970’s and refused research money to pursue the goal. I think the research that was already happening (without patents) would have made digital music just as vibrant as it is today. We would still have mp3’s. The iPhone still would have happened. And I also think it would have happened just as fast. On top of that I think there would be even more options in software today related to mp3’s if patents didn’t exist. Maybe I’m agreeing with the globally convex landscape as well?

I mean, if your objection is that mp3 is like things that came before, then you probably also objected to the PageRank patent, because it was really just a successor to Eugene Garfield’s citation index, right? If so, it sounds like you’re just against patents altogether, because you don’t believe that anything is new under the sun. That’s an extreme position that I can’t really address.

I can only comment in the field of software regarding patents and their usefulness. My objection to mp3 isn’t that it was like things that came before, but that it wasn’t patents that made digital audio a reality (and as rapidly as it did). I’m also not convinced of the significance of the PageRank patent. Is it the PageRank patent that enabled google to become the company that it did? I’m not so sure as there are too many variables. Google had the fastest response times (people hate to wait), understood the market dynamics better than the competition (search value proposition), was much simpler and far less intrusive. Was it the ability to patent PageRank that spurred Page to create Google?

I’m not against patents altogether unless they prohibit innovation more than they do to spur it. In the field of software I’ve seen a lot more cases that inhibit, rather than progress development. I’ll have to look at applied research some more.

Now, do we call it quits, or do we break the 100 comment barrier?

Break 100!

Like

I can believe they are motivated by patents. I just don’t necessarily believe that we get more innovation because of patents and maybe that is a different disagreement (not the local or global landscape).

Maybe I didn’t do a good job explaining the analogy, or maybe the analogy is just crap, but that is actually the same disagreement, not a different one. Here is what I mean:

Suppose there are no patents, because somehow Daniel convinces the world that technological advancement is a single global hill. When in reality it’s not. Well, in that case, everyone keeps climbing the current hill that we’re on.. toward a low, local maxima. No one has the incentives or the protection to strike out on their own on a risky venture, to set out on a trek across the barren landscape in search of another, perhaps taller hill. And in that case, total innovation is lower than it would have been, because everyone gets stuck on the same one hill.

By the same token, the opposite is also possible. Suppose the world is globally convex, but Jeremy convinces everyone that it’s locally dotted with tall points, and therefore that we need to keep patents. When in reality the world is globally convex. In that case, totally innovation would be lower, because the patents don’t actually protect a new, otherwise underexplored region of space. Instead, patents are like barbed wire fences appearing all across the midwest, when the rest of the country is trying to migrate their way to California. They just trip everyone up, for no good reason.

So again, I see this whole battle as one of trying to describe reality as it truly is. Daniel has said that if reality is different than he sees it, he will change his mind. And I feel the same way. The question is: What is reality?

I don’t think patents stop the market from going forward, I just believe they slow down progress.

By definition they are supposed to be able to slow down progress in the short run, if the patent holder so desires. By granting the patent holder a temporary monopoly. Now, how the patent holder uses that monopoly is up to him or her. But don’t mistake a temporary slowing, with a decrease in total innovation.

How can you tell that companies didn’t fold because of the patents. For every 1 company that succeeded, 20 companies could have folded. Is there data to prove that no companies folded because of the success of a digital format? I know of things that have been hindered because of them (I just found this site and am curious as to what else they say):

That’s the data that I wanted to have from Daniel, earlier. I think we would all be interested in seeing a study about this.

I’m not positive but didn’t the internet come about without the assistance of patents?

Yes, but it also came about without the assistance of industry-funded research. So it is a non-datapoint in our study, because it neither confirms or denies either Daniel’s or my hypothesis about patents and motivation by for-profit entities. Instead, it was a creation of public entities, public research, which obeys its own set of laws.

And wasn’t the boom of mp3′s mostly due to the internet?

Don’t mistake the vehicle for the cleverness of the invention. That’s like saying, “well, wasn’t the boom of the fast-flowing beer nozzle mostly due to alcoholism?” Sorry, no.

True, they did research and were motivated by patents. But I don’t think that without their help there would be no mp3 like there is today. I also don’t think that their techniques were profoundly better… On top of that I think there would be even more options in software today related to mp3′s if patents didn’t exist.

Like what options? There are tons of free, open source audio compression formats out there. What is stopping you, either as a consumer or researcher, from using any of those? What is stopping the mp3 player companies from integrating any of those formats into their software-driven hardware? Actually, I just looked at the newest nano, and not only does it play mp3s, various types of AACs and AAXs and AIFF, but it also plays.. wait for the drumroll.. WAV. WAV is uncompressed, CD audio, correct? So anyone and everyone can rip all their CDs to WAV, and not have to use anyone’s compression patents at all. Right? So do you do this? Today’s digital audio players like the nano hold thousands of times more data now than they did 10 years ago, so using WAV should be fine, right? What’s stopping you or anyone else?

I can only comment in the field of software regarding patents and their usefulness. My objection to mp3 isn’t that it was like things that came before, but that it wasn’t patents that made digital audio a reality (and as rapidly as it did).

Did you read this article? If not, go back and read it, and then ask this question again: https://thisismynext.com/2011/08/11/broken-patent-system/

I’m also not convinced of the significance of the PageRank patent. Is it the PageRank patent that enabled google to become the company that it did?

Google itself certainly likes to claim so, for many, many years. Maybe that was part of its marketing image or something, but if you take them at their own word, the answer to your question is yes, pagerank did allow Google to become the company that it did. A faster response time to crappy results would not have driven any users to Google’s front door.

Was it the ability to patent PageRank that spurred Page to create Google?

Ah, so keep in mind that in the discussions above we’ve discussed the pagerank patent in two different contexts: (1) whether pagerank hurts innovation, and (2) whether the patents were a significant motivator for doing the research/creating the company. Just to be clear, the question you’re asking is about (2), now, not about (1).

And the answer to (2) is that it’s not so clear. Again, pagerank was created under an NSF grant, phase I of their digital libraries program. It was public money. It was done while at a university. The research itself was not carried out by a privately-funded company or individual. So the ability to patent had little to do with the creation of pagerank — the main innovation — itself. But you didn’t ask about pagerank.. you asked about Google. Well, without pagerank, I don’t think Page would have created Google. So we’re back to the question of motivation to create pagerank in the first place, and in that case it’s a non-issue, because it was publicly funded, not privately funded.

I’m not against patents altogether unless they prohibit innovation more than they do to spur it. In the field of software I’ve seen a lot more cases that inhibit, rather than progress development. I’ll have to look at applied research some more.

What I would really like to see is someone’s definition of inhibited innovation. I’m going to ask you the same question I asked Daniel, but that he never answered: How do you define/measure total innovation? If there is a small, two-person company that can’t launch its product, because it is doing exactly something that has already been patented, innovation for those two people is lowered, yes. But what about innovation for the system as a whole? Before we can have that discussion, tell me a bit more about how you would measure that?

Going back to the beer nozzle example (read the link above!), suppose someone else copied the beer nozzle design, and formed their own company to sell the product. Suppose that they even improved on the design by figuring out a manufacturing process that allowed them to make the patented shape, but in a better, more robust material. Would total innovation in the manufacturing sector be lower, because this new company was not allowed to use the same design for the next few years, while the patent was in effect? Or would total innovation go up, because the incentives that led the first beer nozzle designer to create the nozzle in the first place. You tell me. Patents are by definition a limited time monopoly. But it feels like you want to measure their impact from the point of invention creation, forward. I.e. the execution stage. But you can’t ignore the motivation, research, time and funds that went in to (perhaps years of) experimenting and coming up with the invention in the first place. So, propose a way of measuring this. I’d like to hear it.

Like

I’m about halfway through reading all the comments.. a very good read, thanks for pointing it out.

But in the comments I’ve read so far, I do note that there is one person solidly in favor of patents, and one person solidly against. The other 6-7 people seem to be neutral or offer no comment. Not much of a tie-breaker yet, but I’ll keep reading.

However, one thing that struck me about the person that was anti-patent was this:

Several leading companies have trawled through their patent portfolios to work out which patents actually drive business value, and are frequently shocked to discover that less than 10 percent of the patents drive 90 percent of the value. R&D resources, already woeful in their returns (according to studies, 70 percent plus in R&D dollars are wasted), are directed to delivering patents instead of developing high-impact solutions that add value to customers and deliver positive financial returns. And some of the largest R&D spenders live in a happy world where the number of patents goes up, whilst the returns slope downwards.

I gotta call complete and utter b.s. Only 10 percent of patents drive 90% of value, and therefore the conclusion is that R&D/patenting is a waste of time and resources?

C’mon. What percentage of small company innovators/entrepreneurs fail in their first year or three? Isn’t that also like 90% Even if it were only 60%, it’s not an order of magnitude difference between that and patents that “fail”. Lots and lots of money is wasted by investors in startups, but that doesn’t mean total value is a net negative. Same for patents.

Acknowledging that 90% of the value comes from 10% of the patents is simply pointing out the way the world works. He’s just pointing out the zipf/power/pareto nature of patents. Which is exactly like the zipf/power/pareto nature of startups, of products, movie success, music success, etc.

To conclude that we should get rid of patents just because they follow the 90/10 rule is like saying society should stop making music, because it also follows the 90/10 (or even 95/5?) rule. Or that we should make it illegal to form startups, because they follow a similar distribution.

Sorry, but that’s ridiculous.

Let someone else propose another reason for doing away with patents. But this one ain’t it.

———-

Oh, and comment #100? Tell me what I’ve won? You can award my prize in Glasgow. 🙂

Like

Comments are closed.