Am I evil, or is killing patents just plain fun?
The other day I re-discovered this post by Joel Spolsky on Hacker News, entitled “Victory Lap for Ask Patents.” I saw it when he originally posted it a while back, but it didn’t resonate with me at the time.
But re-reading it today, I realized how great an opportunity we, as software developers, have to force patent reform by actively contributing to this project. Ask Patents, if you haven’t heard of it, is a StackExchange site where you can ask questions about patents, or, in my case, respond to requests for prior art that invalidate an overly-broad patent. In my case, I focus on software patents.
I can hear what you’re thinking.
That sounds fucking boring
I know, right? But actually, I’ve found it to be quite a fun little puzzle to decrypt the legalese used by patent lawyers to try to get away with ridiculous patents. Here’s an example patent claim:
“A method comprising:
- generating, using a processor, time-based event boundaries detected in a plurality of images;
- computing inter-event durations;
- grouping events into clusters based on the inter-event durations; and
- validating, using a rule-based system, that each event belongs to an associated cluster based on event level content based features.”
Short version: a photo album that groups your photos by the time they were taken.
How hard do you think it was to find examples of prior art? (Hint: it wasn’t)
If you’re still wondering what I’m going on about, then perhaps a different motivator is called for. If you think this shit is boring and pedantic, how do you think someone at the USPTO feels when they have to read it day in and day out, and formally parse and research it to decide whether it should stand?
Let me put this another way – wouldn’t you rather those working for the USPTO were spending their time on legitimate patents? On getting a bunch of those “patent pending” labels off of everything we buy? On crippling the patent trolls, who raise the cost of doing business for anyone who gets successful enough to trespass on one of their dubious “works of genius”?
Well, you can help. Every minute you save the USPTO is another minute they can spend doing things that actually matter. I’m going to start doing it every day. I’ve already done 6 in the last hour. Time will tell whether my contributions actually do anything, but I suspect that, given how unglamorous the work is and how few people generally comment, even a little bit will be appreciated.
So how does this lead to patent reform? My hope is that the community can shred a lot of these useless patents before they take any brain cycles away from a qualified researcher. And if it happens enough, it will start to become clear to everyone involved that the vast majority of software patents are bullshit.
It might sound like a bad, or at least contradictory, idea coming from a programmer, but I genuinely hope (and have some reasons to believe) software patents go the way of the dodo in the next decade.
In fact, I would go so far as to wager the following. I will bet, on pain of writing an entire blog post dedicated to why patents are good, that no one reading this article can find a software patent granted in the last year that actually should exist. The requirements for a good patent are:
- Novelty
- Non-obviousness
Some software patents may technically be novel, but I’ve yet to find one that I thought was non-obvious. Maybe someone will be able to enlighten me.
Want to help some more? Take it to Twitter with the hashtag #patentreform!
Do you think software patents shouldn’t exist because of some prejudice against them in principle, or do you think that no software inventions *can* be both novel and non-obvious?
I don’t have any examples from the past year (I’m not familiar with recent patents), but I wonder how much that’s because software patents are fundamentally unsound, versus how much it’s simply because the people doing the most novel and non-obvious things are using other methods for keeping them a competitive advantage, like trade secrets.
Can you name any good patents from the past year in aerospace? Do you think that aerospace patents should go the way of the dodo in the next decade?
I specifically think that software patents are generally not warranted. The definition of novelty or non-obviousness seems to come down to “can I come up with a really obtuse way to restate something someone else has already done, and get it validated in a system that is overburdened by similar patents?”
Is it possible that good software patents exist? I don’t doubt it. But I would love to see numbers of approved, denied, and later-revoked patents every year, specifically in software. I think they would speak for themselves.
There are two loosely related problems:
One is the horrendously bad practice at the US patent office that grants patents that simply simply should never have been granted. This is the kind of patent the author is going after and regardless of what you feel about software patents in general, it’a a good thing to destroy patents that should never have been granted. Every patent (and every other type of regulation) generates what economists call a “deadweight loss”. This is true even for the most worthy of patents (or any other regulation). We accept that cost since the benefits from it outweigh the loss. For silly patents we get all the loss, and then some due to the sheer amount of them, but absolutely no benefit.
The second problem is that software patents are inherently evil, or something of that nature. First of all, even if you don’t agree with this statement, removing patents that should never have been granted will also make the evil generated by patents somewhat less. Also since there will be fewer silly patents to debate, the debate about the inherent evilness of software patents will also be more sensible since more of the patents representing the problem are really non trivial inventions, so in a sense “purer” evil which makes them more good, in a perverse way 🙂
Can we get away from statements like “Software patents are inherently evil”? Such statements are vague and emotional, and do not help the debate at all.
Were I to make a list of the most “evil” things our government does or allows, I definitely wouldn’t put software patents in the top 1000. I don’t think anybody has died because of a software patent, or was unjustly incarcerated or executed, or sent to war, or tortured, or left homeless, or anything like that.
You’re either trying to make software patents sound hyperbolically worse than they actually are, or you’re using such a watered down definition of “evil” that it has lost all meaning.
That’s fair, but is it in any way unique to software? Software patents certainly sound no more obtuse to me than any other kinds of patents I’ve read. Do we have any kind of objective measure of obtuseness in patents, broken down by field?
To hear software people talk about software patents sounds like a classic case of selection bias. You happen to live (mostly) in the software world, and you see that most patents are bad, so you say “Most software patents are bad”. I suspect that if you tried to make such a specific statement about any other group where you saw, in your daily life, a lot of people in that group doing something badly, you would be grilled for it.
I’d like to see the numbers before I agree to statements like “I think [the numbers] would speak for themselves”. Every group sees the incompetence in their own group more clearly.
Is it possible that good aerospace patents exist? I don’t doubt it. But I would love to see the numbers on that. Heck, I’d like to see a single example of it!
You’re not arguing selection bias, you’re suggesting that experts cannot be a good judge on this topic. Very strange statement to make. Software already has exactly what is needed, it is copyright. Copyright is something concrete, real implementation. Patents is something vague. Just by writing software you’re infringing on loads of software patents. This without even knowing it.
Your argumentation is pretty strange, I assume you don’t write any software of lack any knowledge.
Tal, I believe there has been numerous articles about why software patents are bad with quite good reasoning. Arstechnica has had several related stories. Here is one:
http://arstechnica.com/tech-policy/2012/03/opinion-the-problem-with-software-patents-they-dont-scale/
I don’t remeber the link now, but they ran a story about a paper/survey that had shown that patents in quite a number of industries are simply not worth it. Often the cost of protecting the patents costs more than what is gained from it. The only industry that was a clear exception was pharmacuticals because it is so easy to describe exactly what you patent.
I have talked to people in telecoms industry as well talking about how patents incur a heavy cost on research and development. After the telecoms business went crazy with patents research and product development became very cumbersome because anything that was done always had to be recorded with the aim of turning it into a patent. The firms patent lawyers would hang over the engineers pestering them to produce more useless patents so they could bolster their warchest.
Many companies today seem to file for patents not to protect their invention but to protect themselves against being sued by patent trolls, or to simply have ammunition ready if there should be a patent war.
This obviously isn’t why patents were invented in the first place. Personally I think this could be dealt with by severly shortening the time somebody may hold a patent. If patent’s expire more quickly people will be less inclined to spend time and money on filing patents for useless things.
In general, any patent in the form of, “take this thing that exists in the physical world, now just do it with a computer”, should be invalidated for being obvious. All “business method” patents not related to manufacturing should be invalidated. Take care of those two, and a lot of cruft gets cleared out.
Yes, they should. SpaceX doesn’t even file patents because in Elon Musk’s own words it would just be a “recipe book” for Chinese competitors. Patents simply have no teeth in today’s global economy.
Software patents are doing great harm for the last decade or two at least. There does not seem to be much reason to think they would help. Therefore they should be eliminated. Even if someone makes the case that it is possible for a situation to exist where theoretically it may be useful in some case to have a software patent. The system has caused great harm and the best course of action is to eliminate them.
The case for not eliminating them would need to explain why what has been so harmful is wise and how the system will change to reach that state. The damaged caused has created a very high barrier to reasoned argument in favor. The best case for those in favor of the current system is that giving cash to politicians to maintain the current system is fairly likely to succeed – it has so far.
Let’s break down your opening statement:
> “Software patents are doing great harm for the last decade or two at least. There does not seem to be much reason to think they would help. ”
1) RE: great damage
Reality proves otherwise. Despite software being patentable in U.S. for 30+ years, the software startup scene has flourished. If what you suggest is true, there would be no Google’s, Facebook’s, WhatsApps, etc… that start with nothing and are able to become wildly profitable.
Now, if you were to amend your comment to say that damage to large, established, incumbent tech – then perhaps you’re less off reality. Even then, the IBM’s, Microsoft’s, Apple’s seem to be doing just fine.
2) RE: patents don’t help
Consider investors looking to invest in small startup with unknown personnel looking to reduce risk. Given two identical companies with identical founders and identical ideas, the company that filed for patent(s) would be considered the less-risky – and thereby better able to secure funding. The risk is less because there would at least be some barrier to entry from competitors stealing the idea (assuming it’s worthwhile).
In other words, patents help small entities obtain funding that enables them to go further.
Is there a reason why you don’t want people to read your blog? Light grey text on a white background is a really bad idea. Without straining, the only thing I could read of this entry was the title and the patent claim list.
Darkened it up just for you 🙂
For anyone who enjoys invalidating patents and finding prior art, bookmark PeerToPatent too: http://www.peertopatent.org/
I was asked by my company to file a patent for a regression analysis application. Yes all I did was use regression analysis to achieve something basic. I wrote a small paper on it.
Here comes the interesting part.
The lawyer hired by my company ripped apart the simplicity of explanation of my paper and made it extremely convoluted. Even I could not understand half of the stuff in my patent paper written by lawyer. It was nothing but an application of regression analysis. He made a mountain out of it. My company’s VP who never knew what was the idea and yet he also became a coauthor.
Summary of my feelings for Patent:
1. Do simple things but show then to be extremely complicated.
2. Hire a lawyer to write extremely convoluted paper, which even you can’t understand.
3. Put it on your resume and flaunt that you have a patent. My VP has 5-6 patents, all by virtues of his subordinates. And we are one of the biggest Enterprise Software companies in Bay Area.
I doubt that you own the rights to that patent. You’ll be an author on it, but I expect you transferred the rights to your employer in return for some payment. It’s often in your employment contract that the employer owns all rights to inventions whilst in their employ.
This is exploitative in my eyes. The employee could now, if they left to work for someone else, be sued for patent infringement if they used those techniques again. Their own idea!
At the very least they’re exposing their new employer to that risk. Patents on resumés aren’t a plus point for me. They make me wonder if, by hiring this person, I’m taking on a legal risk. Will they re-use the idea that was in that patent?
Can we all stop signing exclusive rights to our ideas over to our employers in return for a paltry lump sum? Please!
What happens when a startup (featured in every it news blog for its success) is sued by a patent troll but can find prior art for the same thing it got its success? Prior art whch is missed by UPSTO for some reason or because back then StackExchange’s Ask Patent wasn’t available!
Another side to the problem is that patents were never designed to be abused by companies to maintain a competitive advantage.
I sympathize with your belief that many software patents are obvious, but as a practicing patent attorney I just want to point out a couple of things:
1. The patent claim your have copied above is from a published application, not a patent. It is common to file an application with broader claims, and then to narrow those claims during the process of getting the patent. Thus, art that you find based on that claim may not actually disclose or render obvious a claim that eventually issues in a patent. It is important to look at the history of the application to see how the published claim has been amended at this point.
2. Obviousness is judged as of the time of invention or application filing. Because hindsight bias is very difficult to avoid, the patent office relies on actual art that was disclosed before the invention date. The art generally must teach each and every limitation of the claim. I submit that a “photo album that groups your photos by the time they were taken” would not teach all of the limitations of the claim you have copied above.
Invalidating patents which are not useful, novel, or non-obvious is something everyone should get behind, even a patent attorney like myself. It will be great to see how may issued patents are held up as valid vs. invalid over the course of the next year or two due to publicly-submitted prior art. In the data I’ve seen, with the pre-AIA inter partes reexamination procedure, about 8% of all patents were held valid and about 17% were held valid with reduced scope. So about 75% of all patents were invalidated. This includes non-software patents, but my guess is that you’d also get something close to 25% of software patents are valid/reduced scope. Even if this is cut in half due to the nature of software and/or the potentially greater number of prior art references being submitted, patents still provide a valid tool for computer scientist entrepreneurs to protect their (truly unique) ideas. Do we need a process to get rid of the 75% (or more) of “bad” software patents? YES. But cutting off your head to spite your face is not the answer.
First, rewrite the law. Patents shal be awarded to the person or persons who invented the product. No corporatipns or company shal own patents. The patent is nontransferable upon death of owner. It would fix so much and would guarentee a nice employment for inventors. Next, look st reform like the article states
You seem to be under the impression that the USPTO cares what goes on on Ask Patents. The USPTO does not. Neither does the law. A patent, once granted by the USPTO, is presumed valid under the law. The only way you can actually have prior art be useful is in a court case.
I think there have been a few software inventions that were genuinely non-obvious—RSA comes to mind—but I’m not convinced that they’re common enough to justify having software patents at all, let alone the current system and its tendency to grant patents for “Method and System for Zipping One’s Fly Over a Computer Network”.
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