Discussing Paul Graham's essay on software patents

Thanks to Saurabh’s mail on ILUGD, found out about this nice essay by Paul Graham on software patents. Not being much of a lawyer or an expert on these things, but nevertheless having a conviction that software patents are evil, I have dared to comment on parts of this essay. Of course, you are right, whenever possible I have quoted out of context to put him at a disadvantage. :-P

Now YOU have an incentive to go read the essay to find out whether I make sense. ;)

One thing I do feel pretty certain of is that if you’re against software patents, you’re against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There’s nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

Unfortunately, patent law is inconsistent on this point. Patent law in most countries says that algorithms aren’t patentable. This rule is left over from a time when “algorithm” meant something like the Sieve of Eratosthenes. In 1800, people could not see as readily as we can that a great many patents on mechanical objects were really patents on the algorithms they embodied.

Yes, we believe that the patents system has moved much away from it’s original purpose but we especially believe the problem is in software patents/algorithms. Saying that algorithms nowadays are more complex and therefore is ok to patent is incorrect. Algorithms get built over others and with knowledge of previous algorithms, a lot of people are near about the same distance from the frontier. The chances of different people hitting the same method to solve a problem is much higher now than before. This is especially true in the entrepreneurial culture (startups) of today.

To be patentable, an invention has to be more than new. It also has to be non-obvious.

I have heard this several times. How do you define “obvious”? Leaving such a significant issue to such an ambiguous term itself breaks the system.

Applying for a patent is a negotiation. You generally apply for a broader patent than you think you’ll be granted, and the examiners reply by throwing out some of your claims and granting others. So I don’t really blame Amazon for applying for the one-click patent. The big mistake was the patent office’s, for not insisting on something narrower, with real technical content.

So the system requires applicants to attempt to overreach? And what is the implication of that on public freedom?

Where Amazon went over to the dark side was not in applying for the patent, but in enforcing it. A lot of companies (Microsoft, for example) have been granted large numbers of preposterously over-broad patents, but they keep them mainly for defensive purposes. Like nuclear weapons, the main role of big companies’ patent portfolios is to threaten anyone who attacks them with a counter-suit.

Another example of how patents have moved away from their original intent. They are no longer an incentive to invent. They are more like tactical business weapons. Used as defense by the very people who have caused this situation to come about.

We tell the startups we fund not to worry about infringing patents, because startups rarely get sued for patent infringement. There are only two reasons someone might sue you: for money, or to prevent you from competing with them.

So startups, the really innovative side of the business today(Paul says the same thing at the end), don’t need patents to innovate? I find this argument very inconsistent myself. I thought most startups nowadays, who focus on innovation(rather than just providing “solutions”), measure their success by the patents they manage to claim. But again, why have a system when it is not needed by the same people whom it is supposed to help?

If your startup grows big enough, however, you’ll start to get sued, no matter what you do. If you go public, for example, you’ll be sued by multiple patent trolls who hope you’ll pay them off to go away.More on them later.

In other words, no one will sue you for patent infringement till you have money, and once you have money, people will sue you whether they have grounds to or not. So I advise fatalism. Don’t waste your time worrying about patent infringement. You’re probably violating a patent every time you tie your shoelaces.

Well, this is exactly the problem we talk about.

We do advise the companies we fund to apply for patents, but not so they can sue competitors. Successful startups either get bought or grow into big companies. 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.

See how a system which was supposed to be a vehicle of invention is now more of a business weapon?

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.

I am confused now. What are we talking about here?

I’m not sure what the proportions are of the preceding three ingredients, but the custom among the big companies seems to be not to sue the small ones, and the startups are mostly too busy and too poor to sue one another. So despite the huge number of software patents there’s not a lot of suing going on. With one exception: patent trolls.

Patent trolls are companies consisting mainly of lawyers whose whole business is to accumulate patents and threaten to sue companies who actually make things. Patent trolls, it seems safe to say, are evil.

Patent trolls seem to have caught big companies by surprise. In the last couple years they’ve extracted hundreds of millions of dollars from them. Patent trolls are hard to fight precisely because they create nothing. Big companies are safe from being sued by other big companies because they can threaten a counter-suit. 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. [8]

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.

So do startups innovate for the sake of innovation? And it is not about getting big one day? or not about getting rich one day? I consider this as a convoluted logic. Like saying “don’t worry about robbers till you have money they can rob”. It seems to make sense till you realize that most people don’t exactly like to live a life of penury.

One thing I can say is that 99.9% of the people who express opinions on the subject do it not based on such research, but out of a kind of religious conviction. At least, that’s the polite way of putting it; the colloquial version involves speech coming out of organs not designed for that purpose.

Guilty as charged. 😄

Whether they encourage innovation or not, patents were at least intended to. You don’t get a patent for nothing. In return for the exclusive right to use an idea, you have to publish it, and it was largely to encourage such openness that patents were established.

Before patents, people protected ideas by keeping them secret. With patents, central governments said, in effect, if you tell everyone your idea, we’ll protect it for you.

Given a choice between software patents or software trade secrets (encrypted php code, anyone?) what would you prefer? I would much prefer the latter. It is so much more of a level playing field that way - at least for FOSS. It would also give a more relaxed environment for innovators to work in.

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. Most innovation in the software business happens in startups, and startups should simply ignore other companies’ patents. At least, that’s what we advise, and we bet money on that advice.

The only real role of patents, for most startups, is as an element of the mating dance with acquirers. There patents do help a little. And so they do encourage innovation indirectly, in that they give more power to startups, which is where, pound for pound, the most innovation happens. But even in the mating dance, patents are of secondary importance. It matters more to make something great and get a lot of users.

So he ends the essay with a complete contradiction. Why have a system which doesn’t work the way it is intended to?

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