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EFF taking on software patent reform

defendinnovation.org

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Re: EFF taking on software patent reform

#51
Tangential, but was just thinking about this today.

Last week I visited the white house as a part of this program -> http://www.businessfwd.org/

The two topics I brought up with the administration were patent reform and immigration reform. Brought up all the obvious issues that play on HN frequently. Today I got a follow up email intro to someone at the USPTO and here's a copy of my reply to that person. I also pointed him to the defendinnovation.org.

Text of my message to USPTO----

The main concern I brought up during the white house visit was around software related patents and frivolous lawsuits by trolls. I'm sure you get this question often from technology and startup folks, but in my opinion it's pretty clear that the USPTO is effectively levying a giant tax on output of my industry due to issuance and complicit enforcement of patents around elementary concepts.

To me the biggest costs to our economy come in the form of -

- fear of patent conflicts prevent new companies from doing truly novel things that would generate jobs and innovation

- costs of licensing patents from trolls or patent groups impede growth of companies at the most delicate nascent stage (e.g. MPEG-LA or Intellectual Ventures)

- settlements out of court with trolls and/or direct costs of litigation to defend (for the bravest large companies who want to take a stand, e.g. google)

- giant piles of money burned litigating frivolous patent disputes between large companies as a proxy for competing directly in the market (oracle vs google)

In general software patents attract the worst elements of the free market. People and companies that take advantage of the system, who extort, abuse and profit from the structural deficiencies of the USPTO. A typical patent troll group will acquire a set of frivolous software patents covering concepts in use in literally any major piece of software so that technically every large company is an infringer. They will then approach a set of large or medium companies with a veiled threat and offer to sell a share of the patent troll entity. They give a choice to their target to get on board or take an ethical stand and if the victim chooses the later, they'll get sued for infringing and likely be forced to settle because truly there is infringement according to the drafting of the patent that was granted. It's the modern mafia.

The root cause of all of these problems are two fold

1 - granting of patents for non-novel and trivial software and concepts

2 - inability to efficiently litigate and have a patent invalidated by demonstrating that it is truly trivial

Google is a major force of good in this fight and the Oracle litigation has shown my industry a great deal of hope on this front. In particular Judge Alsup on that case showed a very keen understanding of the technology in question and how ridiculous the patent was that Oracle litigated with. That story had a happy ending, but honestly in large part because of that one judge. If this were a different court there could have been a vastly different outcome.

http://news.cnet.com/8301-1035_3-57445082-94/judge-william-a...

My question to you is simple - How can we address these root causes?

The current patent system and review system was not designed for software and is clearly failing to adapt to the current environment and pace. USPTO is granting patents at an ever increasing rate. We quite literally are in such a broken state that I would wager that every piece of software being sold today is infringing on some patent. How long until that structure completely halts the development of any innovation at all?

Too big of an issue to ignore. Thanks for listening.

Re: EFF taking on software patent reform

#52
post #3

EFF's position is too moderate. 5 year monopoly on software ideas? If not even the EFF is willing to take an unequivocal stance against software patents, the trolls and the system will keep their legitimacy. We should not be afraid to take (seemingly) radical positions. Fear of offending the status quo is what keeps it in place. Not too long ago the idea of patenting a theorem or a gene was dubious; the moderates may…

So, good engineers know what happens if you try to just take a complex system and change everything at once, instead of incrementally. Certainly government does (witness the number of "hey let's start from scratch and come up with a much better system" that are 10+ years overdue and many billions over budget). The RIAA/MPAA knows too (make small-medium sized changes using bills that push in the direction they want un…

We don't want a different system. We want no system at all. How's that so hard to grasp? Every single proposal to "fix" patents so far either involves fighting bureaucracy with even more bureaucracy (that's suuuure gonna work out) or are based on the naive assertion that a shorter evil is somehow a lesser evil.

People need to acknowledge already that the patent system is not just a little broken, it's fundamentally broken to its very core. You can band-aid it all you want, it won't fix the inherent problem, and that is and always was the paradoxical claim that slowing down progress will somehow lead to more progress, as well as the utterly illogical assertion that you can, in any way, own abstract concepts.

I completely agree with iwwr: don't be afraid to take the "radical" stance for the sake of a twisted form of political correctness. If something is bullshit, then say so, and demand it be stopped. Not weasel around trying to appease the people who profit from the status quo. Patents are bullshit - the only good patent is a nonexistent patent. Period. So demand that we get rid of this impediment to mankind.

Re: EFF taking on software patent reform

#53
post #18

Number 4 is a tragically bad idea: "Infringers should avoid liability if they independently arrive at the patented invention." I love the EFF (and donate) but as a litigator it appears entirely unworkable. The root problem is that this proposal commingles the standards for copyright and patents. In copyright law, independent creation means there was no copying, and thus no infringement. Patents (sw or otherwise) are…

Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles.

What is this doctrine of equivalents and other established principles? I'd like to know if it is reasonable for software or was developed for other fields and then misapplied to ours.

Also, can anyone point to an example of a small inventor who made a groundbreaking software contribution, patented it, and then profited from that patent as it was applied by big players on a large scale? Since that's the use case that's supposed to justify software patents, it would be interesting to see some examples. Given how many counterexamples there are (basically, all the ones we hear about), it seems likely that this argument is a straw man, or whatever one calls a straw man when somebody's arguing in favor of it rather than against.

Re: EFF taking on software patent reform

#54

Earlier quoted context omitted.

So, good engineers know what happens if you try to just take a complex system and change everything at once, instead of incrementally. Certainly government does (witness the number of "hey let's start from scratch and come up with a much better system" that are 10+ years overdue and many billions over budget). The RIAA/MPAA knows too (make small-medium sized changes using bills that push in the direction they want un…

We don't want a different system. We want no system at all. How's that so hard to grasp? Every single proposal to "fix" patents so far either involves fighting bureaucracy with even more bureaucracy (that's suuuure gonna work out) or are based on the naive assertion that a shorter evil is somehow a lesser evil. People need to acknowledge already that the patent system is not just a little broken, it's fundamentally b…

I think you missed the real question, so let me rephrase.

It's not hard to grasp as an abstract concept, and in general it's a concept I mostly agree with. What i'm trying to grasp why you think this "blow up the world" will work as an effective strategy to get there, instead of "incrementally destroy the system".

You are trying to fight a political fight here, and "radical stances" rarely work well there. If you are going to "Demand we get rid of this impediment to mankind", expect to never get rid of it. Change doesn't happen by screaming about how bad things are, and taking radical stances, change happens by doing something about it, be it legislative lobbying or otherwise.

Re: EFF taking on software patent reform

#55

Earlier quoted context omitted.

We don't want a different system. We want no system at all. How's that so hard to grasp? Every single proposal to "fix" patents so far either involves fighting bureaucracy with even more bureaucracy (that's suuuure gonna work out) or are based on the naive assertion that a shorter evil is somehow a lesser evil. People need to acknowledge already that the patent system is not just a little broken, it's fundamentally b…

I think you missed the real question, so let me rephrase. It's not hard to grasp as an abstract concept, and in general it's a concept I mostly agree with. What i'm trying to grasp why you think this "blow up the world" will work as an effective strategy to get there , instead of "incrementally destroy the system". You are trying to fight a political fight here, and "radical stances" rarely work well there. If you ar…

Actually, it's valuable to have both (the radical as an anchor, the moderate to define a path), as long as they don't spend so much time fighting each other that the real goal never occurs.

Re: EFF taking on software patent reform

#56

Earlier quoted context omitted.

So, good engineers know what happens if you try to just take a complex system and change everything at once, instead of incrementally. Certainly government does (witness the number of "hey let's start from scratch and come up with a much better system" that are 10+ years overdue and many billions over budget). The RIAA/MPAA knows too (make small-medium sized changes using bills that push in the direction they want un…

We don't want a different system. We want no system at all. How's that so hard to grasp? Every single proposal to "fix" patents so far either involves fighting bureaucracy with even more bureaucracy (that's suuuure gonna work out) or are based on the naive assertion that a shorter evil is somehow a lesser evil. People need to acknowledge already that the patent system is not just a little broken, it's fundamentally b…

Not all of us think abolishing all software patents is the solution here. Don't think the entire industry agrees with you. Perhaps in the silicon-valley-startup-bubble, but that's about it.

Re: EFF taking on software patent reform

#57
post #36

Earlier quoted context omitted.

Very different. The cost of coming up with chemical compounds is often quite large. With software most new work is done by very few people.

At the same time, a successful chemical compound might mean tens of billions in sales. A modest software innovation might have a very niche application with much smaller sales. Is a small research team less entitled to protect their novel work than a big corporation?

If you use the word "entitled", you're thinking about this wrong. Patents are not designed to protect fundamental rights (e.g. to a "reasonable" profit), they are designed to maximize societal good by balancing a monopoly incentive with the benefits of open use.

Re: EFF taking on software patent reform

#58
post #26
post #22

I appreciate their efforts, but I disagree with a couple of their points. First, their use of the term 'troll' automatically imbues the reader with a sense of the type of person from whom this effort attempts to protect innovators: people whose single business purpose is the collection and enforcement of patents. That's simply a small, yet quite vocal, subset of the majority of people who benefit from patent law, and…

I agree the "loser pays" provision is ridiculous, for the same reason "loser pays" provisions are always ridiculous. It totally chills small firms from taking on large firms who are ripping them off.

Show me 2 examples of small, non-patent-troll company taking on bigger company with software patents. Seriously, I've never heard of any.

I suppose small companies don't even try patenting their "software inventions", they are busy making the product.

Re: EFF taking on software patent reform

#59

Earlier quoted context omitted.

We don't want a different system. We want no system at all. How's that so hard to grasp? Every single proposal to "fix" patents so far either involves fighting bureaucracy with even more bureaucracy (that's suuuure gonna work out) or are based on the naive assertion that a shorter evil is somehow a lesser evil. People need to acknowledge already that the patent system is not just a little broken, it's fundamentally b…

I think you missed the real question, so let me rephrase. It's not hard to grasp as an abstract concept, and in general it's a concept I mostly agree with. What i'm trying to grasp why you think this "blow up the world" will work as an effective strategy to get there , instead of "incrementally destroy the system". You are trying to fight a political fight here, and "radical stances" rarely work well there. If you ar…

The more people take the "radical" stance, the less radical it becomes (relative to the status quo). That's my whole point. So stop bickering about how we'll never get anything done with demands for abolition - demand it be done, and tell others to do the same. It's that simple.

Re: EFF taking on software patent reform

#60

This seems like a good first step. I never understood why people think we should try and abolish software patents. We can't. Period. There's too much money in them. We can attempt to reform or reshape them so they are less destructive, but crying for total abolition seems to be akin to attempting to abolish the IRS. It might make sense in a perfect world, but it will never, ever happen.

>There's too much money in them.

This is not an argument. I'm pretty sure there was a lot of money in the slave markets as well. Didn't stop the US from abolishing it, though.

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