My friend Buffalo developed a well thought out analysis on EFF's Defend Innovation Project, in seven parts, the first of which is posted here. I happen to disagree somewhat with the tack he chose on this matter.
I think my disagreement comes from one fundamental difference: I do not believe software should be patentable. Further, I find the whole concept of patents of any type somewhat dubious to begin with.
I don't believe that an idea can be made property of anyone. I don't believe, for instance, that having thought of a method to resolve a certain problem and registering this method with the patents office means that I own said method, at least not in the same sense that I own my home. A home can be taken from me, and I'll be left homeless. An idea may be copied, but I will still have access to it. I may not be able to profit as much from it if others copy it; but this risk of failure (that others may profit as much or more than us from our ideas) is a trade off I expect we believers in individualism must be willing to take.
One may argue, "What of the effort spent in developing a new idea? If there's no ownership of the idea, the effort (the house) would have been taken away from the inventor, and he or she would not see any returns/become homeless." I think such an argument is equivalent to saying that a business should succeed because the investors that risked their money should be guaranteed a return. In other words, and to put it mildly, I disagree with that sentiment.
The notions of patents and, to some extent, copyrights are softly defined expediencies designed to, in principle, encourage productivity and cultural developments in society. In practice, they are a fuzzy set of rules of thumb, modified often to adapt to new technological advances, and not always adapting well. For example, it seems impossible to come up with hard, specific rules for what can be patented and what would otherwise be considered an obvious idea or a derivation. Or at least to come up with rules that won't have to be modified in some degree as the years pass.
So, if I am an inventor, what do I get from a patent? I get the legal certainty that I will be granted a temporary monopoly of the exploitation of the idea I have just made public. In exchange for that monopoly the inventor gives up ownership of the patent, and after the monopoly phase ends the patent becomes part of the public domain.
I don't think such an idea should have been engraved in our constitution, but I can live with it, provided individuals still have the choice of keeping their inventions secret if they so choose. Sadly, that is no longer a guarantee under our current patent system, and while this topic would warrant several articles/rants in its own merit, I'll summarize it here: in 2011 (effective in 2013) the U.S. went from a first-to-invent to a first-to-file patent system. In the former I could invent a secret sauce and keep it secret, because if someone later tries to patent it, as long as I could prove I invented it first (by, say, certified logs, or by demonstration of an existing product), I could file and obtain a patent, even if I filed after them. I will only have control of my secret sauce for another 20 years, but at least I will not be forced to pay royalties to someone else for a technique I was already aware of and had implemented in secret.
In the first-to-file system, on the other hand, I may indeed have to pay royalties to a latecomer on my own secret sauce if he or she files a patent on it before I do. In this system I take a much larger risk, and am effectively penalized for not publicizing my invention early enough. If one accepts that ideas can be property, under first-to-file rules I would have my very property commandeered from me for the benefit of society, either by the delayed effect of having registered it as a patent, or by the government allowing someone else to charge me for it.
Evidently I am reticent regarding patents -- I'll like them even less next year, when first-to-file comes into effect. But in certain fields, like manufacture, I think patents provide an acceptable encouragement by the government for the development of technologies (much less acceptable under first-to-file).
Now, when it comes to software (and, in a lot of cases, biology and chemistry), the "fuzzy set of rules of thumb" for novelty and non-obviousness steadily evolved since the foundation of this country and further, since much earlier patent systems, that has worked so fairly well to separate a newer, better mouse trap from a lesser innovative variant, when it comes to software it fails spectacularly. When there is no longer a widget to be demonstrated, when the search space for new ideas is no longer limited by physics/chemistry or other natural processes, thus yielding a domain of ideas the boundaries of which are seemingly a great deal farther than anything prior, deciding what is non-obvious, or even what is new, becomes a lot harder. Was Amazon's 1-click method new? Maybe. Non-obvious? I might disagree. How about the Gif patent? I might be more inclined to accept that as a relatively non-obvious technique, but in this case is only (relatively) non-obvious because there are so many possible ways to achieve the same result (8-bit, palette-encoded, lossless-compressed bitmap file).
So, even if I agree with Buffalo's points on, say, the validity of patents in the pharmaceutical industry -- which I do for the most part -- I think software is more akin to philosophy or art than to mouse traps or drugs, and judging what is new and non-obvious becomes a much harder task.
To summarize my points: Patents are not a sacred cow of capitalism. They are, in some respects, decidedly non-free market (first-to-file). And patent systems cope badly with software. As a result, software patents tend to become not a force for innovation, but a mine-field that software companies big and small have to tread, and where they make easy pickings for non-software companies dedicated not to create advancements, but to make money through litigation. Is making money through litigation an acceptable business model here, from a libertarian perspective? I don't think so, since this is an artificial market, created by government.
EFF's Defend Innovation Project contains initiatives on how to bring the patent system under control. It is taking baby steps toward that goal. The EFF is proposing its own set of fuzzy rules of thumb to minimize the impact of the existing set of fuzzy rules of thumb on the software industry. I don't fully agree with every element of it. For instance, I share some of Buffalo's misgivings voiced in Part 4 of his analysis.
On the other hand I like the suggested 5-year limit on the duration of patents. I do agree that five years seems arbitrary. It probably is. And so is 20 years. But there is certainly an element of pragmatism in this approach. Trying to eliminate software patents in a single blow would be a lot harder than trying to defang it. Making the limit five years may also cause it to be too small to be useful to patent trolls, while allowing inventors to still obtain a useful monopoly, if an idea is truly worth patenting. The ideal number of years in my thinking would be zero, but five is a lot better than 20. In other words, a compromise on a better rule of thumb.
Regarding EFF's sixth proposal, on reasonable damages, I think there are reasonable ways to argue the proportionality of the importance of a given bit of code. For instance, can it be replaced with something else readily available? Is it essential to the functioning of the parent software? If removed, does the loss of performance make the parent software much less appealing, or just a bit less appealing? These are valid analyses that could be presented to a jury, and I imagine civil questions of intellectual property may come down to convincing a jury of the importance of bits of intellectual property that may have been improperly handled by defendants, when there's no other clear cut means of judgment. That might be true for civil cases more often than not, I suspect.
I believe I covered my position on EFF's seventh proposal earlier in this text. This may be where Buffalo and I differ the most. I think to question the benefit of software patents is very valid -- and so it is to question the validity of the patents system in general, but one battle at a time. And, like it or not, patents are a clear prerogative of the federal government (Article I, Section VIII -- Powers of Congress). This is the one case where a congressional hearing would actually be appropriate (these words will come back to haunt me one day, I know it). The question of weather software, or algorithms for that matter, was indeed patentable was settled only fairly recently -- partly, of course, because questions of software in general were only relevant in the last 40 years or so, but this doesn't detract from my point that the field is relatively new and old tools my not be as helpful as they used to be, or even needed. Having a public hearing where different parties (developers, businesses large and small, software companies, users, etc.) can air their expectations and concerns would (or at least could) help congress take a meaningful step towards making the system better, instead of simply making it more complex. Unfortunately, Congress's track record on intellectual property legislation is rather dismal (see copyright extensions, DMCA, etc).
I think my disagreement comes from one fundamental difference: I do not believe software should be patentable. Further, I find the whole concept of patents of any type somewhat dubious to begin with.
I don't believe that an idea can be made property of anyone. I don't believe, for instance, that having thought of a method to resolve a certain problem and registering this method with the patents office means that I own said method, at least not in the same sense that I own my home. A home can be taken from me, and I'll be left homeless. An idea may be copied, but I will still have access to it. I may not be able to profit as much from it if others copy it; but this risk of failure (that others may profit as much or more than us from our ideas) is a trade off I expect we believers in individualism must be willing to take.
One may argue, "What of the effort spent in developing a new idea? If there's no ownership of the idea, the effort (the house) would have been taken away from the inventor, and he or she would not see any returns/become homeless." I think such an argument is equivalent to saying that a business should succeed because the investors that risked their money should be guaranteed a return. In other words, and to put it mildly, I disagree with that sentiment.
The notions of patents and, to some extent, copyrights are softly defined expediencies designed to, in principle, encourage productivity and cultural developments in society. In practice, they are a fuzzy set of rules of thumb, modified often to adapt to new technological advances, and not always adapting well. For example, it seems impossible to come up with hard, specific rules for what can be patented and what would otherwise be considered an obvious idea or a derivation. Or at least to come up with rules that won't have to be modified in some degree as the years pass.
So, if I am an inventor, what do I get from a patent? I get the legal certainty that I will be granted a temporary monopoly of the exploitation of the idea I have just made public. In exchange for that monopoly the inventor gives up ownership of the patent, and after the monopoly phase ends the patent becomes part of the public domain.
I don't think such an idea should have been engraved in our constitution, but I can live with it, provided individuals still have the choice of keeping their inventions secret if they so choose. Sadly, that is no longer a guarantee under our current patent system, and while this topic would warrant several articles/rants in its own merit, I'll summarize it here: in 2011 (effective in 2013) the U.S. went from a first-to-invent to a first-to-file patent system. In the former I could invent a secret sauce and keep it secret, because if someone later tries to patent it, as long as I could prove I invented it first (by, say, certified logs, or by demonstration of an existing product), I could file and obtain a patent, even if I filed after them. I will only have control of my secret sauce for another 20 years, but at least I will not be forced to pay royalties to someone else for a technique I was already aware of and had implemented in secret.
In the first-to-file system, on the other hand, I may indeed have to pay royalties to a latecomer on my own secret sauce if he or she files a patent on it before I do. In this system I take a much larger risk, and am effectively penalized for not publicizing my invention early enough. If one accepts that ideas can be property, under first-to-file rules I would have my very property commandeered from me for the benefit of society, either by the delayed effect of having registered it as a patent, or by the government allowing someone else to charge me for it.
Evidently I am reticent regarding patents -- I'll like them even less next year, when first-to-file comes into effect. But in certain fields, like manufacture, I think patents provide an acceptable encouragement by the government for the development of technologies (much less acceptable under first-to-file).
Now, when it comes to software (and, in a lot of cases, biology and chemistry), the "fuzzy set of rules of thumb" for novelty and non-obviousness steadily evolved since the foundation of this country and further, since much earlier patent systems, that has worked so fairly well to separate a newer, better mouse trap from a lesser innovative variant, when it comes to software it fails spectacularly. When there is no longer a widget to be demonstrated, when the search space for new ideas is no longer limited by physics/chemistry or other natural processes, thus yielding a domain of ideas the boundaries of which are seemingly a great deal farther than anything prior, deciding what is non-obvious, or even what is new, becomes a lot harder. Was Amazon's 1-click method new? Maybe. Non-obvious? I might disagree. How about the Gif patent? I might be more inclined to accept that as a relatively non-obvious technique, but in this case is only (relatively) non-obvious because there are so many possible ways to achieve the same result (8-bit, palette-encoded, lossless-compressed bitmap file).
So, even if I agree with Buffalo's points on, say, the validity of patents in the pharmaceutical industry -- which I do for the most part -- I think software is more akin to philosophy or art than to mouse traps or drugs, and judging what is new and non-obvious becomes a much harder task.
To summarize my points: Patents are not a sacred cow of capitalism. They are, in some respects, decidedly non-free market (first-to-file). And patent systems cope badly with software. As a result, software patents tend to become not a force for innovation, but a mine-field that software companies big and small have to tread, and where they make easy pickings for non-software companies dedicated not to create advancements, but to make money through litigation. Is making money through litigation an acceptable business model here, from a libertarian perspective? I don't think so, since this is an artificial market, created by government.
EFF's Defend Innovation Project contains initiatives on how to bring the patent system under control. It is taking baby steps toward that goal. The EFF is proposing its own set of fuzzy rules of thumb to minimize the impact of the existing set of fuzzy rules of thumb on the software industry. I don't fully agree with every element of it. For instance, I share some of Buffalo's misgivings voiced in Part 4 of his analysis.
On the other hand I like the suggested 5-year limit on the duration of patents. I do agree that five years seems arbitrary. It probably is. And so is 20 years. But there is certainly an element of pragmatism in this approach. Trying to eliminate software patents in a single blow would be a lot harder than trying to defang it. Making the limit five years may also cause it to be too small to be useful to patent trolls, while allowing inventors to still obtain a useful monopoly, if an idea is truly worth patenting. The ideal number of years in my thinking would be zero, but five is a lot better than 20. In other words, a compromise on a better rule of thumb.
Regarding EFF's sixth proposal, on reasonable damages, I think there are reasonable ways to argue the proportionality of the importance of a given bit of code. For instance, can it be replaced with something else readily available? Is it essential to the functioning of the parent software? If removed, does the loss of performance make the parent software much less appealing, or just a bit less appealing? These are valid analyses that could be presented to a jury, and I imagine civil questions of intellectual property may come down to convincing a jury of the importance of bits of intellectual property that may have been improperly handled by defendants, when there's no other clear cut means of judgment. That might be true for civil cases more often than not, I suspect.
I believe I covered my position on EFF's seventh proposal earlier in this text. This may be where Buffalo and I differ the most. I think to question the benefit of software patents is very valid -- and so it is to question the validity of the patents system in general, but one battle at a time. And, like it or not, patents are a clear prerogative of the federal government (Article I, Section VIII -- Powers of Congress). This is the one case where a congressional hearing would actually be appropriate (these words will come back to haunt me one day, I know it). The question of weather software, or algorithms for that matter, was indeed patentable was settled only fairly recently -- partly, of course, because questions of software in general were only relevant in the last 40 years or so, but this doesn't detract from my point that the field is relatively new and old tools my not be as helpful as they used to be, or even needed. Having a public hearing where different parties (developers, businesses large and small, software companies, users, etc.) can air their expectations and concerns would (or at least could) help congress take a meaningful step towards making the system better, instead of simply making it more complex. Unfortunately, Congress's track record on intellectual property legislation is rather dismal (see copyright extensions, DMCA, etc).
