In Critique of Patel’s “The Patent System Isn’t Broken – We Are”
Nilay Patel, of Engadget fame, recently wrote a piece discussing why the patent system in the United States isn’t broken, and touched on all the high points: software patents, patent trolls, and the recent This American Life episode that has been so widely discussed.
I should start by saying that many of his points are sound. He clearly has a good grasp on lots of the patent issues that have concerned me. Even as he starts by by blasting the “conventional wisdom” that “the patent system is broken beyond repair, a relic of a previous time that has been obsoleted by the rapid pace of technical innovation”, he never actually argues that any of the problems that plague the system are either OK, or are not present. A major flaw, then, is that his argument is a straw man argument; he asserts that conventional wisdom is saying the system is completely broken beyond repair. He goes on to assert that the patent system is really just beset by a lot of really bad flaws both in conception and in practice than can probably be overcome by making significant modifications and amendments to the law. I’m not sure I’ve heard a single considered argument anywhere that would disagree with this. In my limited experience, few people are calling for the wholesale dissolution of the entire U.S. patent system.
Moving past a critique on the structure of his argument. he starts with a remedial course in patents, quickly moving past the notion that patents are “just a simple incentive for people to develop new inventions” and describing the fact the patents are an exchange in which inventors make their information public in exchange for time-limited, government-granted monopoly rights on the inventions. I think the subtlety of his point here is that patents encourage the release of novel, innovative patent ideas that wouldn’t otherwise be made public by giving their creators a monopoly on them. The problem is that there is no incentive to keep the ideas secret in the first place. As Richard Stallman said:
Now the patent system is supposed to encourage disclosure of ideas. In fact, in the old days, nobody kept the ideas secret. They kept the code secret, it’s true. The code, after all, represented the bulk of the work. They would keep the code secret and publish the ideas so that way the employees would get some credit and feel good. After software patents, they still kept the code secret and they patented the ideas, so in fact, disclosure has not been encouraged in any meaningful sense. The same things are kept secret now as what were kept secret before, but the ideas which used to be published so that we could use them are now likely to be patented and off-limits for 20 years.
If you look back at the bulk of the major innovations in the software space, this is quite true. I’ve read a lot about it, but Richard Stallman lived through it. His point here is excellent and is not addressed by Patel, but this particular aspect isn’t my primary concern with Patel’s treatment. What concerns me is that he mentions, but never returns to, the notion that patents are first and foremost an “incentive for people to develop new inventions”, to use his words.
In my opinion, it is to this fundamental assumption that we must return when discussing software patents: would software innovation be significantly affected if inventors could not patent their software? He does not explore this topic, and certainly does not point out that unlike almost all other patentable inventions, software is already covered by copyright which already grants software authors government-sponsored monopoly protection for their work for so long that I, and most likely anyone reading this, will be dead when software written today comes out from under that aegis. That fact alone makes software worthy of a second look when it comes to patents, yet Patel points out that
What we keep calling “software patents” are just regular old patents; there is no special section of Title 35 that specifically delineates between hardware and software, or software and machinery, or software and anything else you might dream up.
This indicates that the laws we’re following make no special provision for being able to patent software, yet it is widely acknowledged that software is a significantly different type of endeavor than conventional invention. That realization alone justifies some worry about the status quo.
Patel actually invokes a 2006 essay by Paul Graham to make the point that software patents are just patents. He neglects to mention that Paul Graham advises startups to not “waste your time worrying about patent infringement. You’re probably violating a patent every time you tie your shoelaces”, which Graham writes off as being part a ritualistic battle that all companies must engage in do business here. I can’t immediately think of a more damning statement that indicates the state of software patents is broken. Unfortunately, Graham’s piece was written in 2006 when patent trolls were much newer than they are now, though he had this to say about them:
But because patent trolls don’t make anything, there’s nothing they can be sued for. I predict this loophole will get closed fairly quickly, at least by legal standards. It’s clearly an abuse of the system, and the victims are powerful. But evil as patent trolls are, I don’t think they hamper innovation much. They don’t sue till a startup has made money, and by that point the innovation that generated it has already happened. I can’t think of a startup that avoided working on some problem because of patent trolls.
In the software business I know from experience whether patents encourage or discourage innovation, and the answer is the type that people who like to argue about public policy least like to hear: they don’t affect innovation much, one way or the other.
I don’t think I agree, but even if that’s true, why do we even have them? It can’t possibly be cheaper to deal with all the legal wrangling associated with software patents than not. If what he says is true, at the very least software patents are a drain of time, energy and money from the innovation machine we have worked to build.
Is LodSys fostering innovation? Is Intellectual Ventures? If a lone developer in his bedroom develops a mobile application that is significantly infringing on dozens of patents, what does that say about the “non-obvious” clause in practice? This is not a purely academic question: patent trolls are real, and unlike in 2006, they are going after start ups and lone developers.Can you take a step back and honestly say that such a situation is driving innovation?
Patel doesn’t argue with any of this, thankfully. He acknowledges all of these problems, and suggests several “patches” to current law that might help the situation. But, he never really returns to defend its existence in the first place by explaining how it is fostering innovation in the software industry. And for someone so focused on “actually look[ing] at how the patent system works, where it’s specifically malfunctioning, and how we can fix it”, he doesn’t really justify why software, something that is perilously close to (unpatentable) math, should be patentable.
There are thousands of software patent horror stories that keep cropping up, but one of the most atrocious is about John Carmack. Carmack actually developed a software technique known widely as “Carmack’s Reverse”, which Creative (those guys that make sound cards for computers) later patented and then used against him just prior to the release of one of his games (Doom 3) to strong-arm him into promoting their products. The fact that there was prior art was no remedy for him: the game wouldn’t be released because of ongoing litigation and cost Carmack millions, even though he would win in the end. Creative knew he would do whatever he could to avoid that, and he did.
This type of situation is difficult to prevent and is inherent in the costs of having a patent system in the first place. Knowing that, we have to be able to demonstrate that the patent system (for at least software patents) deserves to live; it has to demonstrate that overall it a net win. No one is doing that, and there is in fact substantial evidence from all corners that it is a significant net cost to the system as a whole.
I have only a few heroes in the programming world. I would like to give them some space to voice their opinions on software patents. As you read, remember, these are the people that were the innovators that actually changed with world with the innovations in computer science and software – they are the people on whose backs the very technology you are using to read this was built.
The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.
I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.Nor is it possible to distinguish between “numerical” and “nonnumerical” algorithms, as if numbers were somehow different from other kinds of precise information. All data are numbers, and all numbers are data. Mathematicians work much more with symbolic entities than with numbers.
Therefore the idea of passing laws that say some kinds of algorithms belong to mathematics and some do not strikes me as absurd as the 19th century attempts of the Indiana legislature to pass a law that the ratio of a circle’s circumference to its diameter is exactly 3, not approximately 3.1416. It’s like the medieval church ruling that the sun revolves about the earth. Man-made laws can be significantly helpful but not when they contradict fundamental truths.
The government desperately needs to be better educated so that it can start to undo the deleterious effects of software patents (by reversing the error of interpretation by the courts that allowed them in the first place).
US experience shows that, unlike traditional patents, software patents do not encourage innovation and R&D, quite the contrary. In particular they hurt small and medium-sized enterprises and generally newcomers in the market. They will just weaken the market and increase spending on patents and litigation, at the expense of technological innovation and research.
Though not quite a programmer, I’ve always admired Phil Salin, who perhaps wrote the most compelling critiqueof software patents back in 1991, long before it was part of the public consciousness. His argument spoke to me because when I first read it ten years ago, I was as motivated to refine my abilities and develop proficiency within my chosen art as I am today. I find my work as a programmer rewarding precisely because it is a fundamentally creative art form, and Phil’s argument strikes at the heart of why endeavors like my own should be preserved. In that sense, his critique of software patents was highly personal for me. 20 years later, we are no closer to addressing these issues than the day he wrote this. I will defer to him for my closing:
Any assertion that some one individual or organization can ever rightfully establish exclusive ownership of the use or refinement of abstract ideas – obvious or non-obvious, important or unimportant – embodied in a work of prose, music, mathematics, or software, should trouble the conscience of everyone whose creative work is built, as it necessarily must be, in part or in whole, out of ideas and techniques discovered and developed by others.
