My educational background is in Finance and Economics, so I frequently find myself agreeing with Joe on a lot of the business and intellectual property-related discussions. However, I just can't get over his defense of software and business process patents.
In the latest episode where Paul Allen's patent "nuke" is being discussed, Joe describes the goal of the patent system - To encourage innovation by making sure those who invent something have some way of protecting it from being used by others, giving them an opportunity to make money off the hard work that went into coming up with the idea (If I paraphrased you incorrectly, I apologize and hope you'll correct me). As a society that at least pretends to be a capitalist economy, we abhor monopolies, but are willing to tolerate them to an extent if they provide a net positive benefit to the economy. A patent is essentially a government-granted monopoly on a certain thing for a specific amount of time. If the benefit these monopolies provide to innovation outweighs the detriment to competition, then they are probably a good thing - and, one can make the argument that much throughout our history, this has been the case. Software and business process patents present some difficulties, though. For one, it is pretty trivial to "invent" something in these areas. I've seen patents filed where the filing process cost more in terms of time and money than the process of actually inventing the thing being patented! Also, a large percentage of these "inventions" are fairly simple, natural combinations or iterations of other "inventions" - think of all the patents that follow the formula of <something people have been doing for years> on the internet. This presents two problems for the patent system - first off, if ideas are cheap to invent and somewhat obvious, is it fair to give a monopoly on them to the first person who decided to write them down and pay for a patent? Second, are we getting our money's worth in the monopoly vs innovation tradeoff? In a large number of patents, I'd argue the answer to both of those question is a definite "NO". So, where are we today? As the patent lawsuits mentioned in the podcast comically points out, every marginally non-trivial website in existence today is in violation of one or more patents. Think about that for a second. The JavaPosse website, your blog you've thrown a few ads on, every single website you visit on a daily basis - they are all patent violators. The *only* reason our economy and legal system are not thrown into total chaos by our broken patent system is that only some of the patent holders are enforcing them, and when they do, they only go after those with big pockets. This mitigates the problem somewhat, but it is still a crappy situation. Frankly, I think having a system where everyone is in violation and getting sued is just a matter of time and success is terribly crappy - from both a fairness perspective and from a "what is best for our economy and society" perspective. I know it hurts innovation - even 10 years ago when I was doing due-dilligence for VC firms, I saw patent concerns come up. I saw companies not get funding because some entity they'd never heard of filed a patent that they'd never seen that their stuff may have violated. Litigation and potential litigation are huge drags on business and innovation, and I've seen the effects first hand. Take this to the extreme - what would happen if patent-holders got more serious about enforcing their rights? It would be an incredible detriment to innovation - I'd argue it would totally kill our economy. Starting up a small business would require hundreds of thousands of dollars (or more) in legal research and licensing fees alone. The internet gives anyone with a half-brained idea the opportunity to pursue it - many (most, actually) fail, but some of them go on to succeed and provide benefit to the economy. The solution offered in the podcast - requiring an actual "product" in order to get a patent doesn't help, and even hurts in some cases. For one, many of these patents are laughably trivial to implement. How long would it have taken Paul Allen's firm to slap a skyscraper ad on a page? 5 minutes? That isn't going to stop or even slow silly patents down. It also hurts true R&D firms who may have some really good, valid inventions but lack the resources to produce them by themselves. I don't think this is the solution. Ultimately, the problem comes down with people being able to obtain patents for obvious and trivial ideas. As people have pointed out, things that aren't necessarily obvious seem obvious in hindsight. However, this doesn't mean that all, or even most, patents granted in the realm of software and business processes fit this bill. What is obvious and trivial? To quote Justice Potter Stewart "I know it when I see it." That isn't incredibly useful, however, and I can't think of a good way to deal with patents in this area. Ultimately, for the reasons I've stated above, I think business process and software patents are a net negative for innovation, our economy, and our society as a whole, and we should do away with them until we can figure out a better way to approve them. -- You received this message because you are subscribed to the Google Groups "The Java Posse" group. To post to this group, send email to [email protected]. To unsubscribe from this group, send email to [email protected]. For more options, visit this group at http://groups.google.com/group/javaposse?hl=en.
