The only use of patents for a small company is to make the company more valuable in an acquisition, and also as a marketing tool.

The way you profit from inventiveness is keeping trade secrets, and building things that are difficult for a competitor to easily copy.

Actually, in practice this "patent predation" is rare (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319):

> This Article also reports on the other major narratives of patent litigation. 4% of the suits were initiated by individual inventors (David v. Goliath), 18% of the suits were brought by small private companies against public or large private ones (small v. large), 16% pit one small-or medium-sized company against another (limited stakes), and in 8% of the suits, a large firm sued a small one (predation profile)

This study also finds that patent trolls are behind a minority of patent lawsuits.

Without any kind of protection, anyone who has a greater means of production/marketing than you will always steal your ideas and profit more from them than you can.

Obviously we need to fix the process so that as few bad patents are awarded as possible. Someone's just got to figure out how!

Since you're an artist shouldn't you only care about copyright and trademarks? What's a patent going to do for you? If someone steals your designs then you can sue them through means other than patents. If they copied your idea but executed differently then well I guess that sucks to a degree but if it's an obvious evolution then more than likely it happened independent of you anyway.

I would imagine artists would have the least issue with just abolishing patents entirely so I'm curious why you do.

Imogen Heap has also been working with some guys to develop their Mimu Gloves. Which probably have some proprietry software & engineering.

So there are at least a couple of people wanting to protect ideas.

Think of a band like U2 - probably the most copied "art" in the world. From memory, their last tour grossed over 1 Billion.

Design and process patents are ridiculous... most software patents are absurd. I work in software, and tbh, there's almost nothing I've seen in the past 20 years that doesn't specifically tie to a physical device in software that is deserving of patent protection, and even then not for 20 years.

I'm not sure how to look at this statistically, but isn't the OP a counter-example?

>Make the application fees cover real research

Not really sure what you mean here. How much is time worth?

Okay, so I have an invention right now that I think is really novel, and I'd like to build a business around it. I may just want to patent and license though. Roughly speaking, it might fit roughly in the "Mathematica" space - note the example of an inventor (Wolfram) making good money on his (software) invention! Isn't that how the system is supposed to work?

Here's another question: of all the innovation in the internet space, what, if anything, do you think is patentable? Is the Facebook feed novel? If nothing is, doesn't this leave the only businesses the ones that are social, the same ones that treat users as product not customers?

The patent system is intended to allow for inventors to recoup investment and make money. It was started in a time where it would take literally years of R&D and a decade to even break even on hard, physical costs. Software and process ideas take minutes to come up with, and hours to develop... A single license/sale generally recovers any creative investment.

There's a very simple, constant-time, objective, mechanical algorithm to determine whether to grant a patent: "return false". That would work better than the current algorithm, which closely approximates "return true".

At the very least, it should take no less effort or inventiveness to get a patent granted than to get an academic paper published in a reputable journal or conference. But it seems highly unlikely that respected academics will jump at the chance to work in patent examiner's offices the way they do to program committees.

> Do we care more about false positives (as in this case) or false negatives (a hypothetical alternative universe where too few, rather than too many, patents are awarded).

False positives. A denied patent is highly unlikely to suppress a good idea; good ideas (and a fair many bad ones with good execution) will succeed whether granted an artificial monopoly or not. But a granted patent can litigate good ideas to death.

> how are individual supposed to profit from their inventiveness when a larger entity could trivially copy the idea

Many wildly successful companies are built on technologies that could easily be copied, and yet aren't. The sole legitimate measure of the patent system is "how many useful inventions do we have that wouldn't have been invented without patents?". How many ideas (outside of the drug industry, which could potentially use some other solution) wouldn't have been created if not for patents?

Apart from that, why do you believe an inventor should be able to invent once and profit for 20 years off the work of others, without continuing to invent and promote further good ideas? Keep inventing new ideas faster than they can be copied, so that the copy is always last year's technology. Make your customers so happy that they'd never want to consider a competitor. Do any number of things that add value to the world rather than subtracting it.

> Are software inventors just supposed to give away their inventions as open source

Preferably, but copyright still exists for those who want to release proprietary software. Copyright stops others from directly copying code. Patents stop others from creating new software, even if not copied from the patent holder. The former seems far more defensible than the latter.

There are several empirical studies that indicate this is wrong. Google and ye shall find.

> That would work better than the current algorithm, which closely approximates "return true"

This is objectively false if you look at publicly available data on rejection rates and understand how the process works.

> good ideas (and a fair many bad ones with good execution) will succeed whether granted an artificial monopoly or not.

Oh yes, they will succeed, but from past experience, not always will they reward the original inventors.

> But a granted patent can litigate good ideas to death.

How often has that happened? Note that if you want to mention examples like Watt or the Wright Brothers, those apocryphal accounts have been debunked.

> Many wildly successful companies are built on technologies that could easily be copied, and yet aren't.

And many dead companies were build on technologies that were too easily copied by bigger competitors.

> Apart from that, why do you believe an inventor should be able to invent once and profit for 20 years off the work of others...

Because a good idea is something that has value forever? Should an inventor not reap some rewards off that?

>... without continuing to invent and promote further good ideas?

Non-sequitur. What makes you think an inventor will not continue to invent?

> Keep inventing new ideas faster than they can be copied, so that the copy is always last year's technology.

This severely underestimates the speed at which technology can be reverse-engineered and duplicated.

> Copyright stops others from directly copying code.

Often the value is in the idea or the solution embodied in the code, not the code itself. Copyright does nothing to prevent that, even though it could be the idea which is hardest to create.

> Patents stop others from creating new software, even if not copied from the patent holder.

In practice, they don't. New software is being created at an unprecedented rate, even as software patents have been in effect for the past two decades.

I'd agree we need a much higher bar for patents, but suggesting we do away with patents entirely is being dismissive of the unpleasant realities of the world.

You're going to have to be more specific about what studies you have in mind. Considering the lack of a control group without major confounding factors, it'd be quite difficult to have a study on the efficacy of a patent system at increasing the number of inventions made available.

> Because a good idea is something that has value forever? Should an inventor not reap some rewards off that?

Remember that the purpose of the patent system (at least in US law) is to encourage more ideas; providing a temporary monopoly to reward patent holders is a means, not an end. At the time the patent system in the US was created, hundreds of years ago, it was believed to be a net win for the general public; at that time, it might even have been possible to read and learn from a significant fraction of the patents granted. With the current culture and wealth of inventiveness, of myriad people happy to release ideas for all to use, and the lack of any value gained by reading the firehose of patent publications, it's quite reasonable to ask if we still benefit from the tradeoff of the patent system, or whether we'd get more benefit by abolishing it. In evaluating that, not a single moment's thought should be given to rewarding patent holders as an end unto itself, only as a means to encourage more invention.

> How often has that happened?

Too often. I've seen far too many FOSS projects suppressed, features left out, or avenues unexplored, precisely because an area is a patent minefield. Cryptography, audio codecs, video codecs, compression technologies, encoding technologies, and numerous other useful code blocked because someone else staked a claim first.

What value is gained when someone pops up and sues some browser or device vendor over some ludicrous patent (in East Texas, naturally), and wins millions? Does anyone seriously believe that those browser or device vendors actually read the patent and said "that sounds like a good idea, let's use it and rip this lone genius off!"? Even if that random troll actually did happen to be the first person to submit an application to the patent office, they've provided absolutely nothing of value.

You can write code entirely from scratch, create something useful, publish it, be sued by someone you've never even heard of, and lose, all because of an artificial monopoly over ideas.

> suggesting we do away with patents entirely is being dismissive of the unpleasant realities of the world.

Patents are one of the unpleasant realities of the world, and patents are one of the main things making it necessary to acquire more patents, as a defense mechanism.

Yes, it is hard to show the beneficial effects of a patent system, just as it is to show any ill effects thereof, which is why any blanket assertion that patents should be abolished or strengthened should be met with skepticism.

Still, many studies do attempt to support their conclusions as rigorously as possible. It is, of course, never enough because of the lack of sufficient data or contextual information. Some studies get quite creative in how they find control data. For instance, some take specific events in history, such as the introduction of patent laws (or change in the strength of patent protection for a specific field) in a certain country, and compare various metrics (e.g. derived from industrial data) before and after these events. Or alternatively they find regimes that are similar in other aspects with the prime difference being in patent laws and they compare metrics across these geopolitical boundaries. For instance, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1513814 looks at industrial exhibitions and finds that the diversity of fields in which technical activity occurred increased significantly after patent laws were introduced.

Different studies take different approaches, so I can't really describe them all. The best I can do is to point to this meta-study and read the studies referenced within: https://eml.berkeley.edu/~bhhall/papers/HallHarhoff12_NBER_w...

> I've seen far too many FOSS projects suppressed, features left out, or avenues unexplored, precisely because an area is a patent minefield.

Would you claim that those technologies that were suppressed, left our or unexplored were otherwise unavailable on the market? Or were these efforts simply re-inventing something already done before?

> You can write code entirely from scratch, create something useful, publish it, be sued by someone you've never even heard of, and lose, all because of an artificial monopoly over ideas.

And you can invent a whole new and useful product line, develop it from scratch, bring it to market and be ripped off and put out of business by bigger guys, all because of insufficient protection of ideas.

>... patents are one of the main things making it necessary to acquire more patents, as a defense mechanism.

Other than protecting their investment in R&D, various companies use patents in various ways. Tech startups, for instance, often seek patents to increase chances of VC funding and acquisition.

It's quite easy to show the ill effects thereof. It's harder to evaluate the beneficial effects, as you'd have to find and model metrics about the net value of inventions that, with all else equal, nobody would have developed or released in the absence of patents. That then makes it hard to evaluate the patent system on balance, to see whether the benefits outweigh the costs.

I'm certainly not going to argue that that the patent system produces no benefits whatsoever; there almost certainly exist some inventions that nobody would have developed or productized without patents, or would not have done so on the same timeline. My argument is that those benefits no longer outweigh the costs.

I read the meta-study you linked to, and found it quite unmoving. They explicitly note via several studies that patents have little effectiveness in inducing disclosure (particularly as such disclosure has little value when engineers rarely read patents and would take a high risk in doing so). Their discussions and linked studies of efficacy at promoting invention itself seem far too focused on direct economic value as a measure of invention value, and the remainder of their study focuses almost exclusively on economic value.

Any methodology that counts a patent troll like Intellectual Ventures in the "positive" column is broken; yes, they cause money to move, but only as a valueless drag force on useful work.

> Would you claim that those technologies that were suppressed, left our or unexplored were otherwise unavailable on the market? Or were these efforts simply re-inventing something already done before?

Both, and other cases as well. I've seen patents used to threaten newly created technologies (e.g. entirely new video codecs still threatened by the MPEG-LA protection racket), from-scratch reimplementations of existing technologies in FOSS, and new applications of existing technologies (e.g. novel applications of arithmetic coding or cryptographic algorithms).

>> You can write code entirely from scratch, create something useful, publish it, be sued by someone you've never even heard of, and lose, all because of an artificial monopoly over ideas.

> And you can invent a whole new and useful product line, develop it from scratch, bring it to market and be ripped off and put out of business by bigger guys, all because of insufficient protection of ideas.

I simply can't see those cases as remotely similar. In one case, a technology or product is suppressed because of an artificial monopoly on ideas, even if people want that technology or product. In the other case, someone else builds a better product and puts the first out of business, and was not stopped from building a better product by the first company's artificial monopoly. I don't care who first threw paperwork and money at a government office; I care about the better product.

To rephrase that another way: in one case, you have two consenting parties that want to do business, but are stopped by a third that neither one wants anything to do with. In the second case, you have two parties that consider doing business, but one chooses to do business with a third party instead because they get more value by doing so.

That's leaving aside the very likely scenario that a patent intended for such a purpose cannot be used "successfully" against a bigger company. The standard scenario: "Oh, you have a couple of patents that you claim we infringe? That's adorable; we have a few thousand covering what you've done, and we won't tell you which ones. Perhaps we'll pretend you never brought this up, or perhaps we'll give you a discount on the money you're going to pay us if you let us use your patents to stomp the next one of you upstarts."

I realize that the cases that show up in the media have a severe selection bias, and that many patent cases get settled confidentially. However, I can readily bring to mind numerous instances of patents used to threaten new entrants to a market, or used for trolling by companies providing negative value. By contrast, not a single case comes to mind of a patent used as you've described, to "defend" a product by the inventor's company against a larger company.

I don't believe technological progress will grind to a halt, or even slow down, with patents (or even just software patents) abolished. I won't necessarily argue with as much confidence that it will massively accelerate, either, though it certainly will in areas I care about. But I can honestly say that I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything. And I've read a substantial number of patent lawsuits, both contemporary and historical.

I haven't found a study that does so convincingly.

> It's harder to evaluate the beneficial effects...

Agreed, but studies have attempted to do so. For instance, the Moser paper clearly shows greater diversity in innovative activity as people started tinkering in fields that had no protection, and hence little incentive to innovate, before patents were introduced.

> My argument is that those benefits no longer outweigh the costs.

And my argument is, with all the studies out there, it is impossible to compare the benefits and the costs as they are largely orthogonal.

> I read the meta-study you linked to, and found it quite unmoving.

Yes, that's why I pointed to the meta-study. I find it fairly balanced on the whole, identifying benefits as well as costs. The point was not to convince you either way, just to highlight that the situation is pretty nuanced. For instance, while classical assumptions (like disclosure) may not hold, there are a number of alternative ways patents encourage innovation (e.g incentivizing R&D investment, signalling, facilitating VC funding and entry, etc.)

> Their discussions and linked studies of efficacy at promoting invention itself seem far too focused on direct economic value as a measure of invention value, and the remainder of their study focuses almost exclusively on economic value.

That is how most of this literature goes, unfortunately, because invention value is impossible to measure at scale. Some metrics have been devised (e.g. number of citations, etc.) but those have also been found lacking. And so the best they can do is find proxies in economic indicators.

> Both, and other cases as well...

Can you point to some examples of a novel technology that would have been available in the market if not for patents? Note that from-scratch re-implementations are just "new", not "novel".

> In the other case, someone else builds a better product and puts the first out of business, ...

Doesn't have to be a better product. It just has to be cheaper because the second company did not incur the costs and risks of inventing a new product line. I've heard "Copycats" by Oded Shenkar is good book about this phenomenon.

> That's leaving aside the very likely scenario that a patent intended for such a purpose cannot be used "successfully" against a bigger company... However, I can readily bring to mind numerous instances of patents used to threaten new entrants to a market, or used for trolling by companies providing negative value.

Again anecdotally these scenarios may seem common, but a limited empirical study suggest they (e.g. predation profile) is uncommon: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319

> By contrast, not a single case comes to mind of a patent used as you've described, to "defend" a product by the inventor's company against a larger company.

Since this is a Microsoft thread, appropriate examples would be Stax electronics and i4i. See also the Chien paper above which may have more numbers.

> I don't believe technological progress will grind to a halt, or even slow down, with patents (or even just software patents) abolished. I won't necessarily argue with as much confidence that it will massively accelerate, either, though it certainly will in areas I care about.

Depends on what you count as "technological progress". I don't necessarily count re-implementations of existing technologies as progress.

> But I can honestly say that I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything. And I've read a substantial number of patent lawsuits, both contemporary and historical.

I guess if you think, say, the Wright brothers didn't really make modern flight possible or that Apple didn't really revolutionize the smartphone industry, not much I can say.

>> It's quite easy to show the ill effects thereof.

> I haven't found a study that does so convincingly.

I'd recommend "Sequential Innovation, Patents, and Imitation" (http://www.researchoninnovation.org/patent.pdf), among others.

There also exist sources of information other than studies. Pointers to specific cases suffice to demonstrate that harm exists and to show the nature of that harm.

My original point was not that the sum total of either the positive or negative effects could easily be quantified, but rather that the negative effects can more directly be observed in any given case, while the positive effects cannot. Evaluating the negative effects simply requires showing an example of an invention that would have been published or product that would have been (or was) created, but was blocked by a patent; plenty of direct evidence exists for that. Evaluating the positive effects requires not only identifying an invention/product, but determining whether the invention/product would still have been published/created in the hypothetical scenario in which patents did not exist. An invention/product that made money from patents does not count in favor of patents; it only counts if it would not have been published/created at all without patents.

> > I read the meta-study you linked to, and found it quite unmoving.

> Yes, that's why I pointed to the meta-study. I find it fairly balanced on the whole, identifying benefits as well as costs. The point was not to convince you either way, just to highlight that the situation is pretty nuanced. For instance, while classical assumptions (like disclosure) may not hold, there are a number of alternative ways patents encourage innovation (e.g incentivizing R&D investment, signalling, facilitating VC funding and entry, etc.)

I meant the description "unmoving" differently than you took it. I did not mean "neutral/inconclusive", though in many ways it was that. I mean that I saw absolutely nothing in it that gave me the slightest inclination to support a patent system (and plenty not to). The meta-study covered three points: 1) efficacy at promoting innovation (one genuine purpose of the patent system), for which it failed to provide any direct evidence (things that would not have happened otherwise) and could only fall back on economic claims (rewarding things that were done; see (3)); 2) efficacy at promoting publication (another genuine purpose of the patent system), which it rather conclusively refuted; and 3) economic incentives and monetary evaluation of patents, which as a non-goal of the patent system (only a means), is irrelevant when evaluating whether a patent system should exist.

I care about code published, ideas created, ideas made practical as products, and other things that create value. I don't care at all about things that just move value around, and neither does the stated rationale for the patent system. The economic arguments made or mentioned in the meta-study only really talk about moving money around, but don't seem to provide evidence to support any claim that any value is created as a result. This seems, to me, like a circular argument, presupposing without evidence that "money flowing towards patent holders" promotes innovation.

Patent lawsuits are a zero-sum game with zero value: anyone's gain is someone else's loss, and no value is created when such money changes hands. When I see money just moving around based on patent lawsuits, no matter who the plaintiff or defendant are, small or large, practicing or not, individual or company, I just see wastefulness. Not quite as bad as destroying something entirely, but nothing of value either.

Inventions and products themselves, by contrast, can actually advance the progress of science.

>> Both, and other cases as well...

> Can you point to some examples of a novel technology that would have been available in the market if not for patents? Note that from-scratch re-implementations are just "new", not "novel".

I'm quite aware of the distinction drawn by patent law there, though I don't consider the patent system's definition of "novel" the only measure of a technology's inventiveness or usefulness. More critically, though it's possible to use the idea covered by a patent (or to be sued claiming such) while also making novel advancements beyond that idea; that includes both novel applications of an existing idea, as well as novel inventions threatened by general patents on entire classes of ideas. Thus, a program that is itself novel can be suppressed by a patent that applies (or threatens to apply) to part of it. See also the "Sequential Innovation" concept and paper I pointed to earlier in this comment.

In any case, some specific examples that qualify as "novel":

- Public-key (asymmetric) crypto was patented from 1977-1997. Multiple people during that period attempted to develop programs for novel applications of asymmetric crypto, but could not due to the patent. PGP was developed towards the end of the patent's life, in spite of the patent, and the patent holder subsequently forced PGP to limit it to "non-commercial use" (and AFAICT the general belief is that they'd have killed it entirely if not for potential bad publicity). In the absence of patents, encrypted email would have been available in the market far earlier. (Note that the patent wasn't for encrypted email; it was for asymmetric crypto in general; PGP was novel, as was asymmetric crypto before it.)

- WebRTC (and, in general, the availability of video in web standards) was blocked for years over what codecs to use, due both to patents on h.264 and threats of patents against VP8. Video on the web would have been available years earlier if not for those patents.

- Some of the software implementing MP3 (and undistributable in the US or anywhere that enforced the patents on MP3) included multiple novel algorithms to produce better MP3 files (e.g. in bitrate allocation, models, performance), and produced significantly better and smaller MP3 files (and did so faster) than the "official" implementation.

- HyperProf, a piece of Java profiling visualization software (back in the JDK 1 days), was blocked due to a patent by Xerox on displaying trees (unrelated to profiling).

- GCC would have had runtime memory bounds checking (to prevent array overruns, etc) in 1996, years before the availability of programs like valgrind and similar, if not for a patent by a company named Pure Software. The GCC implementation included several novel additions beyond the patent, and the patent was not known until after the work was done (and subsequently shelved).

> Since this is a Microsoft thread, appropriate examples would be Stax electronics and i4i. See also the Chien paper above which may have more numbers.

Both of which I'd hold up as examples for "why we shouldn't have software patents". In particular, if you see i4i as a good example, then I'd deeply question your evaluation of value.

>> I don't believe technological progress will grind to a halt, or even slow down, with patents (or even just software patents) abolished. I won't necessarily argue with as much confidence that it will massively accelerate, either, though it certainly will in areas I care about.

> Depends on what you count as "technological progress". I don't necessarily count re-implementations of existing technologies as progress.

See the above cited paper on "sequential innovation", and several of the above examples of novelty above and beyond a threatening patent.

(Apart from that: even a reimplementation of an algorithm without algorithmic improvements or other associated novelties may solve practical problems or otherwise improve on execution. But even if you don't consider that progress, see "sequential innovation" and the above examples.)

> I guess if you think, say, the Wright brothers didn't really make modern flight possible or that Apple didn't really revolutionize the smartphone industry, not much I can say.

That strawman sure was flimsy. First, I neither said nor implied either of those things. I'd quibble over the term "revolutionize" in the latter case, but hyperbole aside, Apple certainly made notable advancements. But in both cases, so what? Neither of those contradicts my statement that "I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything". If I see Apple suing someone over smartphone technology, or for that matter someone suing Apple over smartphone technology, in neither case would I think the plaintiff deserved anything.

You seem to presuppose a pile of additional reasoning that does not follow.

I agree :-)

> I'd recommend "Sequential Innovation, Patents, and Imitation" (http://www.researchoninnovation.org/patent.pdf), among others.

Personally, I would not recommend anything by Bessen without significant cross-checking. Many of the author's works have been shown to have poor methodology. As I recall (it's been a while since I read it), this particular paper presents a theoretical model with little empirical evidence to back it up. Additionally, it posits that R&D intensity does not increase with more patenting by firms, something that later empirical studies refute.

> Evaluating the positive effects requires not only identifying an invention/product, but determining whether the invention/product would still have been published/created in the hypothetical scenario in which patents did not exist.

That is one way to do so, but that is a narrow view. At the macro level, this can be shown by the amount of investment into R&D activity that is evidently incentivized by patents. More money and resources funneled towards innovative activity enables more innovation. While it may not serve as direct proof of specific innovations, it is obvious that without resources being invested into R&D, many innovations would not have occurred sooner or at all. Would Microsoft pour billions into MSR if it did not hope to profit from it at some point in the future?

> The meta-study covered three points: 1) efficacy at promoting innovation (one genuine purpose of the patent system), for which it failed to provide any direct evidence (things that would not have happened otherwise) and could only fall back on economic claims (rewarding things that were done; see (3)); 2) efficacy at promoting publication (another genuine purpose of the patent system), which it rather conclusively refuted; and 3) economic incentives and monetary evaluation of patents, which as a non-goal of the patent system (only a means), is irrelevant when evaluating whether a patent system should exist.

The goal of a patent system is "To promote the Progress of Science and useful Arts". Promoting disclosure, as is capturing rewards, encouraging financing and increasing innovation through forced work-arounds, are all post-hoc rationalizations of that clause rather than explicit goals. It is incorrect to say economic incentives are a non-goal. Insofar as it diverts more resources towards R&D, patent systems evidently do well.

> ... I don't consider the patent system's definition of "novel" the only measure of a technology's inventiveness or usefulness.

Agreed. I have a number of issues with the current implementation of patent systems, but not with the fundamentals.

> PGP, GCC, WebRTC, etc.

Thanks for the examples. I'll note that often what was prevented was re-implementation of existing technologies available on the market, and nothing prevented the research and development of follow-on innovation, only its distribution to the market, which ostensibly would also have been allowed if a license was taken. Sure that would have increased costs of downstream applications, but why should products not pay their fair dues to the upstream innovations that made them possible, even if the products themselves are given away for free?

In the case of MP3s, patents were directly responsible for spurring the then-languishing development of Vorbis, which many consider a better technology.

> Both of which I'd hold up as examples for "why we shouldn't have software patents". In particular, if you see i4i as a good example, then I'd deeply question your evaluation of value.

Both of them were operating companies whose technology was ripped off by Microsoft. I don't see what's so bad about i4i - they were a practicing entity that filled a business niche that MS ignored for years and then decided to just take over once i4i proved it was valuable.

> But in both cases, so what? Neither of those contradicts my statement that "I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything".

So this was not a strawman after all, and I guess therein lies our disagreement. I believe these inventors took enormous risks and caused an undeniable leap forward in their respective fields, and should have reaped proportional rewards. They certainly did well enough, but not nearly as well as they should have. Different value systems, I suppose.

Writings contemporary with that exact clause explicitly state its justification as encouraging the publication of ideas that might otherwise be kept secret; the presumption is that without patents industry would keep more secrets. I think we have ample evidence today to doubt that, but hundreds of years ago that seems plausible.

> I'll note that often what was prevented was re-implementation of existing technologies available on the market, and nothing prevented the research and development of follow-on innovation, only its distribution to the market, which ostensibly would also have been allowed if a license was taken. Sure that would have increased costs of downstream applications

A per-copy license fee of a penny kills FOSS completely; there is no "increased costs". Software has little value if not distributed, and demanding any licensing cost has the same effect as a cease-and-desist, killing the project in either case.

In all cases, I specifically noted the novelty of the software developed; I left out the large stack of cases involving "just" reimplementation, as I figured you'd find them unmoving. For a more extensive (though by no means incomplete) list, see https://www.gnu.org/patent-examp/patent-examples.html .

I grew up through the libgif/libungif debacle, through MP3 being unavailable, through FFMPEG and LAME practically being contraband, through Debian having a "non-us" archive (ostensibly for crypto due to ITAR, but in practice also for patents). I see patents as a minefield, with the known mines marked by the projects hurt by them. I see patents stopping software development on a regular basis.

And in case it looks like I've only seen one side of the issue: I've also successfully filed a dozen patents (all of which have Free Software implementations released), dealt with corporate patent licensing and contract negotiation, and seen various other patent-related workings inside companies. I stand by my conclusion that patents do more harm than good.

> why should products not pay their fair dues to the upstream innovations that made them possible

All innovation is follow-on innovation. Everything builds on previous things. "pay their fair dues" presupposes that ideas should have owners and monopolies who can extract dues; I don't consider that "fair" at all.

The problem becomes even worse in the case of "out of nowhere" patents; you can hardly call them "upstream innovations" if the author of the software didn't even know about the patent, let alone read it and build on it.

The rate of innovation is far too fast for patents. One of the many short-term reforms that would help curb the damage would be a drastically reduced duration; 20 years represents many generations of technology, and a company or companies dedicated to excluding others can stretch that out indefinitely with a steady series of patents (and vague threats and FUD, which work almost as well).

> Both of them were operating companies whose technology was ripped off by Microsoft.

Microsoft wrote their own implementations of both technologies (or in the case of DoubleSpace, obtained it from a different company). DoubleSpace was not a copy of Stacker, and Word was not a copy of whatever i4i supposedly made when they weren't suing people. The term "ripped off" presupposes ownership of ideas and agreement with the patent system. I don't think it would be reasonable for one company to control the entire concept of disk compression from 1990-2010. I don't believe Microsoft did anything wrong in either case.

> So this was not a strawman after all

It was: you held up an argument I never made that had obvious incorrect statements in it to make it sound ridiculous. "The Wright Brothers and Apple did not innovate" is a ridiculous notion. "Ideas should not have owners, and inventors do not have an innate right to control ideas" is a defensible position, just one you disagree with.

> They certainly did well enough, but not nearly as well as they should have.

Apple, the biggest company in the world, didn't do nearly as well as they should have? They've been wildly successful, due in no small part to the exact innovations you're talking about. (And I doubt that success would have been appreciably smaller without patents.)

> Writings contemporary with that exact clause explicitly state its justification...

However, the clause wisely did not include any of that and just specified the intended ends ("progress...") and the means ("time-limited monopoly"). This has stood the test of time, as approaches that were not feasible before (e.g. the ease of reverse-engineering) meant secrecy was not an option and people sought other incentives to invest resources into innovative activity.

> A per-copy license fee of a penny kills FOSS completely; there is no "increased costs".

True, but just because it's FOSS does not mean it gets to free-ride on the fruits of somebody else's labor. If some people want to give away the fruits of your labor for free, more power to them, but that does not mean they get to demand others to do so as well.

> In all cases, I specifically noted the novelty of the software developed;

Well, leaving aside that things like WebRTC is entirely a re-implementation of pre-existing technology in a browser, I noted that much of the software was developed nonetheless. Any novelty developed could have been made available in many other non-infringing ways, such as publishing of papers or technical documents. I'd still say that counts as technical progress. Not being distributable as free software sounds more like a business problem to me.

> And in case it looks like I've only seen one side of the issue: ...

Ditto, besides working with patents, I've contributed to open source projects, open sourced a bunch of my own work and use open-source projects on a daily basis. I see waste and inefficiencies in both systems, but I also see what each has enabled and remain convinced that we need both systems.

> All innovation is follow-on innovation.

True, and this is why patent systems work by distinguishing claimed advances over the prior art before awarding a patent.

> "pay their fair dues" presupposes that ideas should have owners and monopolies who can extract dues;

Or it simply recognizes that ideas have value and people who come up with good ideas should be rewarded just as well as people who provide value in other means.

> The rate of innovation is far too fast for patents.

I have seen ideas introduced almost two decades ago get traction just now. The alternative viewpoint is that good ideas have value forever and 20 years is a fair amount of time to attempt to capture their value.

> "Ideas should not have owners, and inventors do not have an innate right to control ideas" is a defensible position, just one you disagree with.

My position is more that people should reap rewards proportional to what value they provide, and in my mind innovation is one of the biggest creators of value out there. As such Apple, the richest company in the world (and not one I particularly like) should have captured a much larger portion of the smartphone market. Unfortunately, we have no better means of capturing value other than treating things like property, and this has been extended to ideas. If there are better means shown to have worked for ideas, I'm all for them, but at this point, patents are it.