"The reality is that patents (and particularly software patents) are ridiculously broken. The court system does not have the means to tell when patents are reasonable or not, and it is unrealistic to think that that can be fixed."
Can you please elaborate why this couldn't be fixed?
'a long-term monopoly from a patent doesn't really change the research equation from "not profitable" to "profitable", it changes it to "ridiculously profitable"' The converse is also true: a patent can tip the balance from something that's not profitable to a company to something that is. You patent something precisely because you don't use it (=no direct benefit from it) because it opens up a potential revenue channel without having to turn the patent into a product.
In other words, the patent system rewards patenting things you're not actually using yourself (if you're big enough to not care about the cost of applying for a patent). I think that's one of the clearest arguments against patents in their current form - what possible benefit is there to society in granting a monopoly to someone who doesn't want to get in that market in the first place?
"what possible benefit is there to society in granting a monopoly to someone who doesn't want to get in that market in the first place?"
The argument is that the patent makes it profitable for them to do the research, because they will be funded by licensing it, and someone else will produce it.
eg. patents make it possible for research lab to exist which don't do any production.
That is certainly true, what I debate is whether that is actually a net good.
First of all, it's only a benefit to society if that research lab came up with something that nobody else could come up with. The pro-patent argument is sort of based on the myth that inventions come from individual rare geniuses - eg. if they didn't work on this topic then nobody else would come up with that invention.
That's absurd; 99.99% of inventions could be made by anyone who was at that place and time; that is, they naturally follow from the current understanding of the scientific community, they aren't a huge unexpected leap. (in fact, most patents are simply "take existing idea A and use it in new application B").
Furthermore, the argument relies on the assumption that the research would not be done if there was not profit to made from it, which is also absurd. I have always found that real researchers are profoundly unaffected by concerns for profit - they want to do research, they want to discover things, they don't really care if they make lots of money from it.
The only exception to this is research that costs a huge amount of money.
That's why the anti-patent argument is easiest to make for fields like software where the capital cost of research is near zero.
"The court system does not have the means to tell when patents are reasonable or not, and it is unrealistic to think that that can be fixed."
Ninomojo: "Can you please elaborate why this couldn't be fixed?"
Yann: "Is that really necessary ?
Just imagine a blind man in charge of deciding if the color of the window is the right one."
Well yes it is necessary. There's an easy counter argument which is "the court system could hire independent experts". I know there are a thousand ways this can go wrong, but I'm genuinely interested in knowing why Cbloom thinks it's "unrealistic to think that that can be fixed".
It doesn't mean I don't agree or I don't think it's true.
" Well yes it is necessary. There's an easy counter argument which is "the court system could hire independent experts". "
Okay. They sort of already do that; if a patent goes to trial, then you get a whole parade of "expert witnesses" on each side. But the expert witness system in courts is horribly broken, because courts have no ability to judge which experts are actually experts or represent the consensus of scientific view, so the patent-supporters can easily dig up some people to support their side (there's no good mechanism in US law for ferretting out the bogus experts).
Part of the problem is that the burden of proof is on the people trying to show the patent is a trivial step from common knowledge; they would have to do lots of research to gather examples of similar prior work, and often that work isn't published, when jackasses patent things like "xor cursor" it's too trivial to have papers about it, you have to go dig around in people's code bases to find the prior art.
But if it has to even get to a trial it's really gone too far. You'd like to knock out the junk patents right at application time, but that would require a huge government staff of "experts" that are specialized in tons of fields. Even if you could find these experts, there would be massive conflicts of interest. There are just way too patents, and to make a good judgement you really have to be an expert in that specific field - there's no way all those reviews could be done, it would be massively expensive, and even then tons of incorrect patents would slip through the cracks.
One significant benefit of patents is that the research gets published. Although others can't copy it as-is (so it may support unhealthy monopolies) they do at least have the information to build upon the ideas. This may not otherwise be available - particularly with software patents.
If you consider this form of research transparency more important that the downside of monopoly support then they are a good thing.
- Subject to all the realities and abuses of the current system. And yes, university patents are madness.
December 13, 2010 at 5:55 AM
Ignacio wrote about software patents a while ago and it's got me thinking.
First of all I applaud the general idea that every individual is responsible for acting morally, regardless
of the environment they live in. I see far too many people who use the broken system as an excuse to behave
badly themselves. eg. lots of people are polluting it doesn't matter how much I hurt the environment,
the tax system is broken it doesn't matter how much I cheat, the patent system sucks so I have to be a part of
it, etc. I believe this attitude is a facile rationalization for selfish behavior.
In any case, let's get back to the specific topic of patents.
In my youth I used to be the lone pro-patent voice in a sea of anti-patent peers. Obviously I was against the reality
of the patent system, which consists of absurd over-general patents on things that aren't actually innovations,
and the fact that expert review of technical issues before a court is an absurd farce in which money usually wins.
But I was pro the basic idea of patents, partly for purely selfish reasons, because I had these technical inventions I
had made and was hoping I could somehow get rich from them, as I saw others do. As a young individual inventor, I believed
that getting a patent was my only way to get a fair price for my work.
Now I have a different view for a few reasons :
1. Policy should be made based on the reality of an issue, not your theoretical ideal.
The reality is that patents (and particularly software patents) are ridiculously broken. The court system does not have the means to
tell when patents are reasonable or not, and it is unrealistic to think that that can be fixed.
2. The purpose of laws should be to ensure the greatest good for society.
Even if you think software patents are good for the lonely independent developer, that in itself is not reason enough to have them.
You have to consider the net benefit to society. I believe that the world would be better off without software patents, but this is a
little tricky.
What are the pro-patent arguments ?
One is that they encourage research funding, that companies wouldn't spend money on major research if they didn't have the patent system
to ensure a monopoly for their invention.
I find this argument generally absurd. Do you think that IBM or Microsoft really wouldn't fund research that they believe will improve
their business if they couldn't patent the result? Companies will fund research any time it is likely profitable; a long-term monopoly
from a patent doesn't really change the research equation from "not profitable" to "profitable", it changes it to "ridiculously profitable".
Furthermore, in reality, most of the major tech companies don't actually use their patents to keep monopolies on technology, rather they
engage in massive cross-license agreements to get open access to technologies. Patents wind up being a huge friction and cost for these
companies, and you have to maintain a big war chest of your own patents to ensure that you can participate in the cross-licensing. The
end result of this is yet another oligarchy. The big tech companies form cross-license agreements, and smaller players are frozen out.
This is a huge friction to free market innovation.
Now, I believe one legitimate point is that in a world without patents, companies might be more motivated to keep their innovations secret.
One pro-patent argument is that it allows companies to patent their work and then publish without fear of losing it. Of course, that is
a bit of a false promise, because the value to the public of getting a publication which describes a patented algorithm is dubious.
(yes obviously there is some value because you get to read about it, but you don't actually get to use it!).
Finally it is absolutely offensive to me that researchers who receive public funding are patenting their works, or that university professors
patent their works. If you receive any public funding, your work should be in the public domain (and it should not be published in the
pay-for-access journals of the ACM or IEEE).
But this is an issue that goes beyond software. Are any patents good for society? Certainly medical patents have encouraged lots of
expensive research in recent years, and this is often used as a pro-patent argument. But lots of those new expensive drugs have been
shown to be no better than their cheap predecessors. Certainly patents provide a massive incentive for drug companies to push the new
expensive monopolized product on you, which is a bad effect for society. Would you actually have significantly less useful research
if there were no patents? Well, 30-40% of medical research is publicly funded, so that wouldn't go away, and without patents that
publicly funded research would be much more efficient, because they could be open and not worry about infringement, and furthermore it
would be more focused on research that provides tangible benefits as opposed to research that leads to profits. It's a complicated issue,
but it's definitely not obvious that the existance patents actually improve the net quality of medical treatment.
In summary, I believe that patents do accomplish some good, but you have to weigh that against
the gains you would get if you had no patents. I believe the good from no patents is greater than the good
from patents.
In any case, hoping for patents to go away is probably a pipe dream.
Smaller goals are these :
1. I find it absolutely sick that public universities are patenting things. That needs to stop.
Professors/researchers need to take the lead by refusing to patent their inventions.
Any corporation that receives the bullshit "R&D" tax break should be required to make all their
patents public domain. Anyone that gets a DoD or NSF research grant should be required to make
the results of their work public domain. How can you justify taking public money for R&D and then
locking out the public from using the results?
2. Some rich charity dude should create the "public patent foundation" whose goal is to supports
the freedom of ideas, and has the big money to fight bullshit patents in court. The PPF could
also actively work to publish prior art and even in some cases to apply for patents, which would
then be officially released into the public domain.
A more extreme idea would be to make the PPF "viral" like the GPL - build up a big war chest of
patents, and then release them all for free use - but only to other people who release their own
patents under the same license. All the PPF has to do is get a few important patents and it can
force the opening of them all.
(deja vu , I just realized I
wrote this before )
"12-07-10 - Patents"
8 Comments -
"The reality is that patents (and particularly software patents) are ridiculously broken. The court system does not have the means to tell when patents are reasonable or not, and it is unrealistic to think that that can be fixed."
Can you please elaborate why this couldn't be fixed?
December 9, 2010 at 3:44 AM
Is that really necessary ?
Just imagine a blind man in charge of deciding if the color of the window is the right one.
December 9, 2010 at 10:51 AM
'a long-term monopoly from a patent doesn't really change the research equation from "not profitable" to "profitable", it changes it to "ridiculously profitable"'
The converse is also true: a patent can tip the balance from something that's not profitable to a company to something that is. You patent something precisely because you don't use it (=no direct benefit from it) because it opens up a potential revenue channel without having to turn the patent into a product.
In other words, the patent system rewards patenting things you're not actually using yourself (if you're big enough to not care about the cost of applying for a patent). I think that's one of the clearest arguments against patents in their current form - what possible benefit is there to society in granting a monopoly to someone who doesn't want to get in that market in the first place?
December 9, 2010 at 11:19 AM
"what possible benefit is there to society in granting a monopoly to someone who doesn't want to get in that market in the first place?"
The argument is that the patent makes it profitable for them to do the research, because they will be funded by licensing it, and someone else will produce it.
eg. patents make it possible for research lab to exist which don't do any production.
That is certainly true, what I debate is whether that is actually a net good.
First of all, it's only a benefit to society if that research lab came up with something that nobody else could come up with. The pro-patent argument is sort of based on the myth that inventions come from individual rare geniuses - eg. if they didn't work on this topic then nobody else would come up with that invention.
That's absurd; 99.99% of inventions could be made by anyone who was at that place and time; that is, they naturally follow from the current understanding of the scientific community, they aren't a huge unexpected leap. (in fact, most patents are simply "take existing idea A and use it in new application B").
Furthermore, the argument relies on the assumption that the research would not be done if there was not profit to made from it, which is also absurd. I have always found that real researchers are profoundly unaffected by concerns for profit - they want to do research, they want to discover things, they don't really care if they make lots of money from it.
The only exception to this is research that costs a huge amount of money.
That's why the anti-patent argument is easiest to make for fields like software where the capital cost of research is near zero.
December 9, 2010 at 11:36 AM
Ugh, I'm in one of these annoying patent-related situations right now.
December 9, 2010 at 3:00 PM
"The court system does not have the means to tell when patents are reasonable or not, and it is unrealistic to think that that can be fixed."
Ninomojo:
"Can you please elaborate why this couldn't be fixed?"
Yann:
"Is that really necessary ?
Just imagine a blind man in charge of deciding if the color of the window is the right one."
Well yes it is necessary. There's an easy counter argument which is "the court system could hire independent experts". I know there are a thousand ways this can go wrong, but I'm genuinely interested in knowing why Cbloom thinks it's "unrealistic to think that that can be fixed".
It doesn't mean I don't agree or I don't think it's true.
December 10, 2010 at 5:06 AM
" Well yes it is necessary. There's an easy counter argument which is "the court system could hire independent experts". "
Okay. They sort of already do that; if a patent goes to trial, then you get a whole parade of "expert witnesses" on each side. But the expert witness system in courts is horribly broken, because courts have no ability to judge which experts are actually experts or represent the consensus of scientific view, so the patent-supporters can easily dig up some people to support their side (there's no good mechanism in US law for ferretting out the bogus experts).
Part of the problem is that the burden of proof is on the people trying to show the patent is a trivial step from common knowledge; they would have to do lots of research to gather examples of similar prior work, and often that work isn't published, when jackasses patent things like "xor cursor" it's too trivial to have papers about it, you have to go dig around in people's code bases to find the prior art.
But if it has to even get to a trial it's really gone too far. You'd like to knock out the junk patents right at application time, but that would require a huge government staff of "experts" that are specialized in tons of fields. Even if you could find these experts, there would be massive conflicts of interest. There are just way too patents, and to make a good judgement you really have to be an expert in that specific field - there's no way all those reviews could be done, it would be massively expensive, and even then tons of incorrect patents would slip through the cracks.
December 10, 2010 at 10:53 AM
I largely agree - but:
One significant benefit of patents is that the research gets published. Although others can't copy it as-is (so it may support unhealthy monopolies) they do at least have the information to build upon the ideas. This may not otherwise be available - particularly with software patents.
If you consider this form of research transparency more important that the downside of monopoly support then they are a good thing.
- Subject to all the realities and abuses of the current system. And yes, university patents are madness.
December 13, 2010 at 5:55 AM