Per the last few paragraphs of the article, I've been thinking the following ought to be an adequate defense against some of these massive patents like the Lodsys patent: You claim your patent has been infringed upon by hundreds of people. We can show that many of these hundreds of people have never heard of your patent, or any subsequent licensing of your patent, and implemented the patented idea themselves. Therefore, by virtue of this repeated and numerous recreation of your patented idea, it is clearly obvious.
Alas, hammering this into a legally rigorous argument would be quite a challenge, but in general the very idea that hundreds of people could be in violation of your patent without any sort of communication between themselves for the purposes of violating this patent, or any sort of trail back to the patent holder, shouldn't actually be possible.
Actually, it would be very possible for a patent to shape the industry without anybody knowing. Ideas spread quickly, and the better the idea, the faster it will spread.
Say AntiLodsys invents micro transactions - which, for the purposes of this post is a non obvious technology that wouldn't have been invented by anyone else anytime soon - and patents a specific implementation of it. Unlike real Lodsys, which bought a junk patent and claims it covers every piece of software that networks, AntiLodsys actually invented something useful, which has value.
Sony, Microsoft, IBM etc are given presentations by AntiLodsys, demonstrating the system they've come up with. They all think it is fantastic, and license the technology.
From this point on, micro transactions will be seen as the direction that the industry is going in, and AntiLodsys is some obscure technology company that most have never heard of.
From there, a whole flood of smaller companies start using micro transactions, violating the patent, and a few years later, AntiLodsys starts sending out legal notices to companies violating its patent. The industry cries foul, because the whole idea of micro transactions is seen as obvious, the way the industry was going, etc. It's painted a patent troll, trying to steal bread from the table of hardworking independent developers.
So there's a situation where, if one accepts the premise of patents to begin with, a company nobody has heard of actually does have a legitimate claim.
"A new paper on "The Myth of the Sole Inventor" by Mark Lemley, a professor of law at Stanford, reinforces Mr Sanchez's point.
[S]urveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often "in the air," or result from changes in market demand or the availability of new or cheaper starting materials. ..."
It's very common that ideas multiple people in the same time throughout the world, and that multiple businesses are working on it in the same time. Even the light bulb was invented by many people in about the same time, without knowledge of Edison doing the same.
The world consists of 7 billion people. Surely, quite a few of them manage to see where some technologies are going and try to work on the next step in the technological progress.
Also, don't forget that as human beings, we've always used prior knowledge to improve ourselves and our technology. No technology can be invented in isolation from other technologies right now. They are all invented in the context of technology that has already existed.
Patents don't seem to account for that. They act as if technologies are born in isolation, and also they act as if only one person in the whole world (or country) can invent something at a time. Both are flawed concepts.
Check out this video here about how inventions are born:
I'm not arguing that the scenario I painted was the usual scenario, or even common. I was just putting an example together to show how his defense would not work in principle. That is, a legitimate patent scenario where the defendants were infringing without any knowledge of the patent existing.
Basically, I was trying to point out that wide infringement without knowledge of a patent does not a priori mean a patent should be invalid.
Actually, I think you're right about the way invention usually happens. Software patents are by far a net loss for the industry, and I'm against them. I just like to reply when I see what seems to me to be a flawed argument, whether I agree with the conclusion or not.
The purpose of a patent is so that the original inventor can make money from his invention whilst not having to keep the actual invention a secret. Patents have a time limit (not sure what that is) in which the inventor gets to make his money before the invention is open to society.
Maybe we should ask to change the law to say that because of the nature of software and the rapid change of growth in emerging technologies, the length of time a software patent owner gets to generate money from his invention is limited to a much shorter length of time, say 1 or 2 years. This way, legitimate patent owners as per your example still have time to generate income and establish themselves as market leaders in whatever technology, but there is much less incentive for people to patent troll, since the patents aren't intrinsically worth as much.
Also, perhaps you shouldn't be allowed to sell patents on to other people. That seems completely against the spirit of the whole thing - I should only be allowed to license you my patented idea. If I sell you my patent, does that mean you came up with the idea, suddenly? Buying and selling patents is surely only for evil purposes...
The problem with that argument is that the world in which scores of people are spontaneously re-inventing the same thing, is not the same world in which that invention was made. It's entirely possible for something to be non-obvious when it is invented, then to become completely obvious later.
"the great stagnation" is the discovery of new "disruptive" technologies that would transform the possibilities of economic production in the way the fossil-fuel-powered engine did
People largely think of computers as "invented", but that's horseshit. We've seen maybe 1% of the disruption that computers are going to cause.
Bitcoin was one of those "holy shit" moments for me, when I realized that we've only begun to see how computing is going to radically transform the shape of money.
Huge aspects of our lives remain largely unaffected by the invention of the computer, because actually applying the computer to our problems takes decades. It is a slow process of hacking out brittle solutions to niche problems, and then waiting as those solutions are slowly absorbed and molded to our culture, and then used widely enough that someone else can take the next tiny step.
Think about this: Medicine turns out to be a low hanging fruit as far as A.I. concerned, in that relatively simple statistical models can be valuable diagnostic tools. Doctors still operate the way they did 100 years ago... reading lots of books in medical school, and then looking in those books as they do their job. Only now, in PubMed and the like, they've got a much bigger book and they can flip through it faster. AI hasn't even really poked over their horizon.
And that's an easy problem. The hard problems that computing will obliterate are a hundred years off.
We have yet to experience a single generation where every child had access to programming tools from birth.
We have no idea what is coming. But I am certain we will be seeing decade after decade of relentless innovation as this plays out.
If that NPR broadcast is correct, then what Intellectual Ventures is doing -- licensing shell companies to do their dirty work for them while proclaiming publicly that they're purely defensive -- is so evil that one has to wonder if they even believe their own bullshit. Attacking inventors and creators in the name of defending them gives new meaning to the phrase "protection racket". Three cheers for Chris Sacca having the balls to publicly make the obvious Mafia comparison.
My favorite part of the broadcast (the abridged ATC version - I haven't listened to the full hour, is it better?) was the engineer who went on about what unintelligible garbage most software patents are. The ones I've read remind me of the bogus design documents put forth by architects and middle managers in large companies -- box charts and technobabble.
The game theory of patents has been blindingly obvious to me for years. If you think others can independently come up with it, patent it. If you think it's utterly novel, hide it as a trade secret.
When you think of it like that, doesn't the whole edifice come crumbling down? The goal of patents was to encourage publication of new techniques. But the most valuable ones escape.
There are situations where it would be impossible to develop an utterly novel solution without publicity, namely any system that despite its complexity can be trivially reverse-engineered and anything whose value is dependent on the public availability of [expensive, privately-funded] research demonstrating how it works.
These edge cases exist; the problem is the patent system doesn't assume they're edge cases and instead seems to encompass anything and everything that can be classed as an invention (not to mention some concepts that are so vague and broad it's question whether they actually describe anything at all)
The problem with trade secrets companies are unwilling or unable to patent won't go away.
There is a certain demographic that reads The Economist and it is not the mainstream. It is closer to the mainstream than Hacker News, but it still isn't quite there yet.
It is nice to see this issue filtering its way through popular media, but the problem is that some of the nuances seem to be getting lost along the way.
Maybe it's just me, but I would have liked to see a bit more background on this issue than what was presented in this article. Even just a little discussion regarding the problems specfic to software patents. (I.e. the question of whether software is even patentable.)
I guess the problem with that is the more details get included, the further from the mainstream you get.
Really, I think that it would take something really shocking to get the real mainstream into this. Something like an injunction against some popular piece of hardware (or software). Then you wouldn't need to include all of the details. You could just rely on people having knee-jerk reactions against patents in general.
I would say this is going to boil down to "Patent trolls make the world terrible." At which point something might be done about the patent trolls, but not about the patents themselves. Which, granted, the world would be a much better place without the trolls. But i would still rather see Software patents abolished.
The system is the way it is because somebody benefits. In this case it's the big software companies, who will end up cross-licensing patents the way the chip makers did in the '90s and create a legal cartel. They'll be able to crush newcomers with patent litigation. And the great thing about suing a small company is you don't even have to win - you just have to make defending against your lawsuit very expensive.
Pretty sure the Economist has already run something along the lines of "For %%%%'s sake, let's decriminalize marijuana already." Don't count on government doing the sensible thing after the Economist runs an article on it.
The Economist has been in favor of full legalization of all drugs for decades now. Fun fact: Milton Friedman was also strongly in favor of legalization, and he even convinced his friend and Reagan's Secretary of State George P. Shultz.
Even more fun fact: the National Review has also been pro-legalization for ages, as was William F. Buckley Jr.
This is part one. It gets itself into the public consciousness. This by itself will do nothing to help fix it. Lots of stuff in politics is broken and everyone knows it.
The fix comes when a cool new technology gets invented in America, produced in China and then sold everywhere on earth but the USA while garnering huge media attention. Something almost iPhone big that Americans just can't get.
I was hoping Spotify would be a good trial run. I'm hoping they just pack up and head to greener pastures.
Well it is a mainstream issue, given the prolificacy of the PTO it would appear any entity with a website is probably infringing on multiple extant patents. Probably what you are remarking is how quickly it is being recognized as a mainstream issue. What would be more remarkable though is how quickly the problem is actually fixed, if ever.
How would one prevent the politicians from simply carving out a special exemption for themselves (as they seem to have done with the TSA) instead of fixing the problem?
Wasn't there a piece - by Malcolm Gladwell - in the New Yorker a few years ago that had a section about how great Intellectual Ventures was? I guess that's another point against Gladwell from this crowd..
The interesting thing was that most of the piece was actually about how common simultaneous invention was. You'd think that that kind of questioning of the basis of the patent system would incline Gladwell to rip on IV, but somehow he ended up writing a puff piece. Maybe Myhrvold's personal charm won him over.
A patent that is truly so original that somebody else wouldn’t arrive at the same solution by applying normal engineering skill is useless as a defensive patent. ...
I'm pretty disappointed in an article like this coming from The Economist. This is nothing more than poorly-researched piling onto the popular anti-patent sentiment.
Case In Point 1: If the company suing Spotify is truly a patent troll (i.e. a non-practicing entity), then buying into IV's patent fund would not help them. Having defensive patents only works when the aggressor has a line of business that could be threatened with patent infringement.
Case In Point 2: I have to take issue with Lemley's critique of simultaneous invention. To name two high-profile cases, consider the Bell-Gray simultaneous invention of the telephone, or Dow and Exxon's slugfest over metallocene-catalyzed polyethylene patent protection in the late 1990's.
Re your case in point 1, it is precisely this thinking that they want to exploit. "They wouldn't be suing us if they didn't have a case, so let's just settle". Except that if it actually comes to court, chances are it'll be thrown out within a minute.
Minor point: this is a blog entry, not an article. I don't believe "The Economist" holds their blogs to the same standard as their articles. Certainly the voice and formality is more relaxed in their blogs.
Why do people complain about Intellectual Ventures trolling patents? As much as I don't like them, they are within the laws. Fix the broken patent system and the patent trolls will go away. Getting rid of the software and business process patents is a good start.
There are many things that you can do within the law that many people will find unethical. That is the case of Intellectual Ventures. Complaining about unethical behavior is very much valid.
Moreover, publicizing (i.e. complaining about) the behavior of entities like Intellectual Ventures is pretty much necessary for fixing the patent systems. The prevailing wisdom, at least among people who decide those things, that patents are good because they lead to economic prosperity.
Those people need to be told about cases where the exact opposite of that is happening and that's why we need to complain about IV and Loadsys and others as loudly and as frequently as possible, so that the people who can abolish patents hear those complaints.
So it's ok for an "ethical" company to use patent to force a competing product off the market?
Also who decide what is ethical or not? Why is Apple making ungodly amount of money on the backs of poor consumers is ethical while IV making bucks for their investors is not?
My point is it's better to attack the source of the problem - patent system, than focus on the superficial feel-good stuffs.
As the post you replied to says, you need to point out abuse of the laws in question for politicians to fix the issue. IV is abusing the law. Sure they are within the law but they don't respect the spirit of the law.
And Apple is getting tons of flack for the HTC patent case. They are not escaping freely while Intellectual Ventures is getting pounded on. And as far as poor consumers who buy from Apple, that's their own damn fault for doing so.
It's completely different when then a company like IV prying on small company who build things with patents that wouldn't stand in court. The little guy cannot sue IV to prove that since they don't have the cash. Public shaming in this case is the best way to go and it's the best way to bring it to the attention of the politicians who can fix the issue.
I do not understand this section: Here's where Mr Myhrvold's Intellectual Ventures comes in. Intellectual Ventures owns a huge portfolio of patents. Quite possibly they also have some sort of patent that covers streaming music over the internet. Intellectual Ventures makes money through a sort of protection racket that helps Spotify defend themselves against companies like PacketVideo
How can Spotify use IV's patent pool defensively against PacketVideo, a patent troll when they PacketVideo doesn't do anything other than sue? The defensive aspect only comes into play against companies who have other lines of revenue that you can threaten... thoughts?
Yes, that's the whole problem with "defensive" patents, which larger companies only own to be able to countersue: you cannot countersue a patent troll, because technically, they don't do anything, so they're not using any technology you could possibly patent.
What about the issues posed for idealist entrepreneurs... ?One does not want to endorse a malfunctioning system, but working within the existing patent regime, seeking its protections, and enduring the legal costs that it imposes seem more than just de rigueur. Patent attorneys are absurdly expensive, but they can prevent months of waste in development. But maybe what I'm saying is just prospect theory run-amok. I only have the data of my own experience.
Alas, hammering this into a legally rigorous argument would be quite a challenge, but in general the very idea that hundreds of people could be in violation of your patent without any sort of communication between themselves for the purposes of violating this patent, or any sort of trail back to the patent holder, shouldn't actually be possible.