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The Patent Pledge

paulgraham.com

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Re: The Patent Pledge

#161

Post by doron »

artursapek wrote: post #151
doron wrote: post #101

Earlier quoted context omitted.

This line is repeated everywhere now, and it is hard to swallow. A deterrent is only useful if you employ it from time to time to demonstrate its power. If you have offensive capacity you will be bound to use it. Guns don't kill people, People kill people. Sure, but guns make it much easier, and by design, have the capacity for landing in the wrong hands.

A deterrent is only useful if you employ it from time to time to demonstrate its power. Are you suggesting people who own guns should kill someone from time to time so nobody will fuck with them?

Are you suggesting that this is not how guns usually get used?

Re: The Patent Pledge

#162

Post by byrneseyeview »

zdw wrote: post #100

The number thing is abusable. Witness facebook still operating under the SEC's 500-person limit: http://dealbook.nytimes.com/2011/01/03/facebook-and-the-500-... I'm not aware of any measurement method that any moderately smart rules lawyer (aka anyone who's played more than 5 hours of a strategy video game or pen and paper RPG) couldn't figure out a way around.

One way to frame that is "This is abusable. All you risk is the NYT writing an article trashing your behavior." The 500-shareholder rule is fairly obscure among laypeople, and pretty much only popular among people who litigate the cases it creates. So someone patent-trolling might suffer even more.

Re: The Patent Pledge

#163

Post by EGreg »

The purpose of patents, as I understand it, is to propose a compromise in order to promote innovation: the company which publicly discloses its non-obvious innovations through a patent is granted a MONOPOLY RIGHT by the government, and enforced by the courts, to prevent anyone else from implementing this invention without paying licenses. (Depending on the country, they may be forced to offer licensing, or not.)

In the software industry, patents are unnecessary. Because whatever is patented, even if it is not obvious WHEN patented, it (or a variant of it that falls under the patent) nevertheless becomes OBVIOUS to lots of people a mere 3-4 years later. Therefore, we can easily explain how a 20-year monopoly has wound up HURTING the industry rather than helping it. Companies implement an invention WITHOUT rummaging through new patents that come out every year. It is obvious that most of the stuff implemented in the software industry was arrived at in a different way. Non-practicing entities can sue those who actually implemented the invention 3-4 years later. Meanwhile, those who implemented it, get hit with a suit.

Therefore, patents have now become a tax on innovation.

I repeat: the inventions were not obvious AT THE TIME THEY WERE PATENTED. And, those who ultimately implemented them DID NOT READ THE PATENTS in order to get the idea for the invention. Therefore the system is not serving its purpose.

Patents are an exchange between the inventor and the public. The inventor discloses how an invention works, and in return gets a monopoly for 20 years so that no one else can implement it.

In open source, the IMPLEMENTOR not only discloses a theoretical thing but actually builds it AND releases all the inner workings of it, AND others can build on top of it. So we get the upside with no monopoly. Why do we need the latter, then, if so much innovation happens without it?

Re: The Patent Pledge

#164

Post by [deleted] »

EGreg wrote: post #163

The purpose of patents, as I understand it, is to propose a compromise in order to promote innovation: the company which publicly discloses its non-obvious innovations through a patent is granted a MONOPOLY RIGHT by the government, and enforced by the courts, to prevent anyone else from implementing this invention without paying licenses. (Depending on the country, they may be forced to offer licensing, or not.) In t…

[deleted]

Re: The Patent Pledge

#165

Post by cabalamat »

pg wrote: post #59
tc wrote: post #31

It's not immediately clear to me whether this solves any part of the current problem. But on reflection, I believe I understand the motivation here. Big companies that use patents as a revenue stream (MSFT, IBM, etc.) typically bide their time and bring a patent lawsuit once a new company is established and there is blood to drain. It's the threat of such a lawsuit in the future that can negatively impact investment…

If you want to start a movement, you can't aim too high initially, or you just stall. The patent pledge in its current form is at least fairly easy to swallow. If it sticks, it will have the effect of making patent suits against competitors seem more dubious, which would in turn prepare people for more exacting versions. How far ultimately would you want to push it? I honestly don't know yet. Patents may have some ut…

> The topic seems to be one of those where on average the strength of people's opinions is inversely proportional to how much they've studied the problem.

For me, at least, the experience has been the reverse: I used to think the patent system was basically sound with only a few problems, but the more I've read on the history of patents, the more I've realised how broken it is, and has been for a long time.

For example, in the 18th century James Watt used his patent to stymie development of high-pressure steam engines.

In the 19th century, there was costly patent litigation over barbed wire, which benefitted the economy not one jot. Nor did the sewing machine patent thicket and ensuing litigation benefit the consumer.

A patent is supposed to teach people how to make an invention. But in the 20th century, Frank Whittle wrote his patent application for the turbojet several years before he had actually made one. His patent couldn't teach people how to make a turbojet, because at the time of writing he didn't know himself! -- it took Whittle several years of hard engineering before he built a working jet engine.

Re: The Patent Pledge

#166

Post by jessriedel »

beagle3 wrote: post #116
jessriedel wrote: post #109

Earlier quoted context omitted.

I don't get it then. If my company holds a huge portfolio of patents, and we sue for $X damages on some subset of them in a given year, we will simply value those patents at $X and the rest at zero. Then we recover $X in damages, and pay 1% of X in taxes. In other words, doesn't this just reduce to a 1% tax on patent damages? (Even if we think we'll only recover on average p% of our claims, we still only pay 1% of X…

No, it does not reduce to 1%. At worst, it will reduce to (1/p)% (with p However, it does chill the chilling effect - right now, e.g. Microsoft has ~20,000 patents, and they can sue anyone for anything. This way, they will actively have to choose strategically what they want to enforce. Finally, and I think I haven't made this clear enough, I don't think my proposal is a GOOD patent system in any way. It is bad. But…

Fine, so it's a (n/p) times 1% tax, where p is the average chance of victory and n is the average number of years in court for each suit. This doesn't seem to change the structure of the incentives at all; it's just a tax on patent infringement damages.

I find the non-retroactive possibility much more interesting.

Re: The Patent Pledge

#167

Post by cabalamat »

beagle3 wrote: post #116
jessriedel wrote: post #109

Earlier quoted context omitted.

I don't get it then. If my company holds a huge portfolio of patents, and we sue for $X damages on some subset of them in a given year, we will simply value those patents at $X and the rest at zero. Then we recover $X in damages, and pay 1% of X in taxes. In other words, doesn't this just reduce to a 1% tax on patent damages? (Even if we think we'll only recover on average p% of our claims, we still only pay 1% of X…

No, it does not reduce to 1%. At worst, it will reduce to (1/p)% (with p However, it does chill the chilling effect - right now, e.g. Microsoft has ~20,000 patents, and they can sue anyone for anything. This way, they will actively have to choose strategically what they want to enforce. Finally, and I think I haven't made this clear enough, I don't think my proposal is a GOOD patent system in any way. It is bad. But…

> Any system in which the value of the patent is potentially infinite (as in the current system) is materially broken, and it is just a matter of time until someone finds a way to game it (non practicing patent trolls).

Incidently, patent trolls are not a new phenomenon: Elias Howe was on in the 19th century. http://volokh.com/archives/archive_2009_04_26-2009_05_02.sht...

Re: The Patent Pledge

#168

Post by cabalamat »

tc wrote: post #31

It's not immediately clear to me whether this solves any part of the current problem. But on reflection, I believe I understand the motivation here. Big companies that use patents as a revenue stream (MSFT, IBM, etc.) typically bide their time and bring a patent lawsuit once a new company is established and there is blood to drain. It's the threat of such a lawsuit in the future that can negatively impact investment…

> Big companies that use patents as a revenue stream (MSFT, IBM, etc.) typically bide their time and bring a patent lawsuit once a new company is established and there is blood to drain.

Doesn't the legal doctrine of laches prevent this?

Re: The Patent Pledge

#169

Post by dotBen »

Daniel_Newby wrote: post #153
dotBen wrote: post #131

I'd like to see a different Patent Pledge. One where software engineers pledge not to participate in formal patent creation. Because ultimately, all of the software patents out there were 'authored' by a software engineer. You have to have the person that actually invented the new implementation on the document. Sure, your employment contract says that any IP you create on your employer's dime is owned by your employ…

Well, you can make that commitment - in writing and verbally - when you join a company. With most employers, the statement is "For a period of one year after leaving employment, I will review and sign all documents needed to attain intellectual property protection for work done in the scope and course of employment."

Yes, exactly. Which is why you would redact that line and tell them you can only sign the contract without that clause.

In the current climate NO software engineer should be signing any employment contract handed to them without making some change - there is tons of opportunity to leverage better terms in the current market.

Re: The Patent Pledge

#170

Post by teach »

damoncali wrote: post #141
rgoddard wrote: post #138

Earlier quoted context omitted.

Unlike trademarks, you can hold a patent without having to defend it. You are not legally required to use it. So the choice to use it is yours. The logic behind defensive patents is similar to creating nuclear weapons as a deterrent and the theory of mutually assured destruction.

Except the superpowers with all the nukes routinely fling them at each other. Where is the deterrence? If IBM is not deterred by Microsoft's patents, why would they be deterred by mine?

I think you're mistaken about superpowers flinging nukes at each other. Only two nuclear weapons have ever been used in war, and that was 65 years ago.
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