The patent system isn’t broken — we are

&#62;If “the patent system is broken” is a lazy rhetorical cheat, then “software patents shouldn’t be allowed” is the most completely vacuous intellectual cop-out possible.<p>What an insulting and unfounded statement. The arguments against software patents are strong and coherent. Intelligent people can disagree in good faith about the issue, but labeling the anti-software patent position a "completely vacuous cop-out" is unjustified rhetoric. So far as I can see, he doesn't really provide anything other than "math is hard, companies spend money on it" to support a contrary position, and the philosophical point that physical inventions are based on mathematical physics is true but outside the scope of legal reasoning.<p>The whole piece irritates me, because it is really just repeating the standard arguments for the utility of the patent system in general which all serious participants in the debate already know. The implication is that opponents of software patents are just too ignorant to know the basic issues - which may be true enough of Random Internet Commentators, but is certainly not true of the many experts who are opposed to software patents.

This is a rubbish article. It attempts to paper over obvious, horrible problems by blaming the people who try to game the system. It also attempts to marginalize objections to the current patent system by blaming people.<p>For starters, the anti-patent (or even anti-"Intellectual Property") position is <i>not</i> a default mindset, even today. The anti-patent viewpoint is not an "intellectual cheat", if the arguers back up the position with research, facts and examples, which, oddly, this article even gives.<p>Secondarily, the article even raises the basis for patents in the USA: to promote progress in science and engineering. If the patent system doesn't do that, then what is it's purpose? If the patent system just ends up giving incumbents in the market ways to limit competition,the it is indeed well and truly broken.

Can someone summarize what the hell this guy's point is? I read 5 different paragraphs closely and skimmed the rest (he needs an editor) and can't figure out what he's saying, besides calling people who have a beef with software patents "lazy".<p>What's his solution to Intellectual Ventures, et al? One of the paragraphs I did read compared them to buying up land in the middle of town and setting up a strip mine. Which isn't a favorable comparison and, incidentally, we have zoning laws against that.

I recently asked a patent lawyer acquaintance of mine the question: "Do you think patents encourage innovation?"<p>His answer was: "There's absolutely no question at all whatsoever."<p>Which I was certainly a bit suprised by.<p>Maybe the truest conclusion I can come to is that, well, because he's a patent lawyer and his livelihood is based on that being true, he has every incentive to believe it.<p>I think it's worth pointing out that Nilay Patel is a laywer. [EDIT: non-practicing lawyer, never a patent lawyer] It's clear to me when I read his writing on the subject as well as when I hear him talk about it on the podcast that he's so far from my own thinking on this as to be almost incomprehensible.<p>I've slowly been reading this: <a href="http://www.dklevine.com/general/intellectual/against.htm" rel="nofollow">http://www.dklevine.com/general/intellectual/against.htm</a><p>But it seems to be light on data. Seems to me that theoretical arguments are well established and fairly strong on both sides at this point. Does anyone know of any empirical studies that have been done on the subject? Is that even possible? Any strong natural experiments?

In response to Nillay I left this brief comment:<p>Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.<p>You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(<a href="http://www.cs.cornell.edu/home..." rel="nofollow">http://www.cs.cornell.edu/home...</a>. The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)<p>The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).<p>Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.<p>And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.

Declaring opposing opinions to be knee-jerk must be the oldest trick in the world.<p>Phrases like these infuriate me: "lazy conventional wisdom that the patent system is broken beyond repair". No, it's not lazy. Smart people have devoted a lot of thought to this, and while some arrive at the conclusion that patents are a net benefit, that is far from the only conclusion that thinking people would be able to reach.

One of his supporting arguments cuts both ways.<p>Apple's patent on "hand scaling velocity" simply gives a mathematical formula for the sentence: "scale at a speed proportional to how fast the fingers are moving."<p>There is nothing groundbreaking or advanced about the math here, or the idea behind it. Anyone implementing a multi-touch screen is likely to come to discover that a fixed scaling speed sometimes feels sluggish or awkwardly fast, and so that speed should adjust based on user input. And now, without realizing it, they've infringed on Apple's IP and are open to being sued.

An interesting article, but I think its main point can be summed up as "Look at all these dumbos holding signs saying to end slavery, when interviewed they can't even give good reasons! Haha, here's a few reasons why slavery is actually <i>good</i>!"<p>Nearly every big cause, right or wrong, has its supporters that may have just happened to be on that side, or thought about it seriously once and have since forgotten the details, or indeed have written many essays or books about the subject. I'm sure there are pieces more elegant and detailed than this that argue for abolishing the patent system; characterizing a position by the existence of uninformed supporters seems useless to me since pretty much all positions have those. The sentiment of educating the masses is nice, and I can agree with it, but on the other hand this is why we have skill specialization--I can give some money to someone who has spent lots and lots of time on the issues to continue their fight, I don't have to spend the same amount of time myself.<p>I know basic algebra looks brilliant to most ordinary people scared of math but I thought "Patents publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history, and it’ll all be free for the taking in several years" particularly amusing after the Apple screenshot. For startups and other companies outside the Valley (where there's a strong sense of sharing), how often do actual game-changing things get patented instead of made into a trade secret?

&#62; [disclosure is] an important way the patent system encourages innovation, actually: it forces inventors to build alternative ways to do things<p>Are you sure it is not just a way of forcing people to waste effort making something different when there is a perfectly good solution ready to use? Is it not better to be building <i>on</i> things rather than <i>around</i> them? and having invention driven primarily by demand not by obstacles?<p>&#62; Stop offering patent protection and there’s no more required disclosure -- all this stuff stays locked up as trade secrets<p>Are you sure it is not the likeliness of keeping the secret that dominates here? That is, if you think you <i>can</i> keep an invention secret for longer than a patent term, you will choose that instead of a patent -- since it will give you a longer monopoly. And if you think you <i>cannot</i> keep the secret, patent disclosure does not help anyone else that much, since the secret was going to leak anyway.<p>The supposed rational is one thing. Whether it actually works that way is another -- and there is no clear proof that it <i>does</i> work.

"Because getting a patent means accepting a time-limited monopoly on your invention, anyone will be able to use this specification to build their own search engine when the patent expires in 2018."<p>This paragraph from the article points out one of the larger issues I have with patents in high-tech, which is the length of the grant. Even ignoring the fact that simply reading patent claims is a VERY long way away from working code and related infrastructure, the lapse of the patent plus the knowledge from the patent would only be good for helping you to implement Google's algorithm as it existed in 1998(!). Forget about 2018, Google's algorithms (while still built on similar concepts) are known to be very different today or even 4 years ago than they were in 1998.<p>By granting such a long term to patents you are not just blocking competitors from the core claim, but also any innovations you make while the patent is active, assuming enough of the original invention remains that anything else that uses your non-filed tweaks would still be in violation of the original process.<p>Result? You could (assuming reading a patent magically allowed you to actually recreate the system) recreate 1998 Google in 2018. Approximate value of that 'knowledge gift to society' IN 2018? $0! You're 2 decades behind where you need to be if you're starting at the original core invention.<p>BTW, I don't mean for any of this to be a knock on Google, PageRank is simply the example the original article decided to use. Google remains one of the only big software-related corporations whose patent usage/enforcement hasn't yet been destructive to the industry as a whole.

If Title 35 was a good description of what the US patent system was like in practice then our patent system would still be working.

I think this is a healthy perspective. Far better than the knee-jerk "patents are evil" perspective we see so much of today.

Thank god someone is actually thinking about it in an informed way and fighting back against a dogmatic (and frequently extremely poorly informed) abolitionist position.

This is an extremely well-thought-out defense of the value of patents, and it presents the issues as nuanced problems that need to be resolved with careful thought.<p>I have long thought, as the author does, that a ban on "software patents" is extremely short-sighted, given that pretty much any physical object can be represented by equations or software. I really love his example of a beer bottle with a particular neck shape dictated by fluid mechanics equations.<p>His thoughts on patent trolls are also very welcome -- if we truly believe that intellectual property has value, then we have to allow it to be bought, sold and asserted. But, it does seem reasonable to tie damages to lost revenue or other actual business costs, which non-practicing entities would not have.

I'm not sure what the title is supposed to mean. FTA "The solution is simple, of course: we just have to add a real software patent section to Title 35. " I guess he's trying to say the patent system isn't broken, but here's how I would go about fixing it.

&#62; most important and disruptive inventions in the history of the world<p>Hyperbole much? PageRank, really? The Internet, yes is one of the most important and disruptive inventions. One companies algorithm for sorting search results. A company that's only been around for a decade or so. Search is huge, Google is huge, but they and esp their pagerank agol ain't close to being one of the most important and disruptive inventions in the world.

Summary by one sentence of the article: "Now, I’m not a software developer, mathematician, or patent expert". That reads in other parts of the text... and even in the poor choice of patent excerpts.<p>Some parts are naive at a rare level, e.g.: "Those rules might actually solve the software patent dilemma for us if we just wait long enough: the gold rush to patent all these fundamental software technologies means that they’ll all be public domain prior art in a few years, and any obvious improvements won’t be patentable. The pendulum swings both ways."<p>And the long rant about software patent not being explicitly defined in the law and that fact being considered as an important advance in the discussion -- well did anybody did not know that? And even if it was the case, does that make the general discussion about the goodness or badness of patenting software irrelevant in any way?

If a system does not work for the population it is intended for, who is to blame? The population, or the system?<p>It does not matter. In any case, to make it work, you need to change either the system or the population. I am quite sure that changing the population is not realistic at all.<p>Note that this leaves aside the concrete issue, in which I believe that the blame rests mostly on the system, which failed to understand the motivation of people. It does not matter, though (see above).

"is broken" equates to "allows or encourages something that wasn't originally intended". That's an apt description of the patent system and the current situation.

IP is the problem. Software patents are a mess cause we've convinced ourselves that owning intangible thoughts and ideas is keen!

Wow. the equation for computing of the hand scaling velocity is a gem. It computes, when translated, how much the distance between the fingers changed per the time interval... or... yes, hand scaling velocity!<p>I hesitate to call this an "advanced technology". It's a kind of calculation we'd have done during what amounts to college years in the US.<p>I stopped reading there.

Out of all the articles about patents that get posted on HN, this is one of the most knowledgeably written I've seen.

I read most of the article, and I think it is as flawed as his title. Of course, we aren't broken. If anything is broken, it is the system. If there is a problem between us and the system that we have created, then it is the system that we should change, not us.

can anyone tell me what are repercussions of simply disallowing selling of patents?<p>I mean if they just allow only inventors themselves to license their patents and don't allow IV/Lodsys kind of companies to own patents they didn't invent.<p>Won't that solve half of the problems?

I could not follow all the ramble, but he seems to think that patents are just fine, and all we have to do is implement the law better. But if the law isn't implementable or understandable by mere mortals, the law is <i>wrong</i>.

Tl;dr version: Look at all this useful math disclosed thanks to software patents.

<a href="http://thisismynext.com/2011/08/11/broken-patent-system/#comment-283799490" rel="nofollow">http://thisismynext.com/2011/08/11/broken-patent-system/#com...</a>

Random idea: What if all software patents were required to include an executable code example demonstrating the patented concept?

The ideas that Nilay puts forth as good examples of patents are held up here to be bad examples.<p>Why is that?<p>Because Nilay doesn't understand why these patents are obvious.<p>Which is the whole fucking problem with the patent system Nilay:<p>People like <i>you</i> saying "Well, these patents look reasonable to me, so why are you people who do this for a living complaining?"