In this post I’m going to explain why patents can be a good idea, why they often go wrong today, and a way to fix that problem. And I’ll do that all in the context of a situation you should understand well: finding a shorter route to drive from home to work. (This post is ~1600 words, and so longer than usual.)
A non-obvious problem with patent litigation: whether or not one infringed a patent may depend on specific technical details - and the people who have to make a decision are twelve laymen with no knowledge of the field. Good luck explaining the difference between a phase-locked loop and a ring oscillator to a bunch of English majors!
For what it's worth, I spoke with a couple patent attorneys a week ago about IP protection for my start-up company. The impression of both law firms was that patents for "abstract ideas" are no longer worth filing. While 1998 through 2010 were a heyday of patent creation, neither law firm thought they would be enforceable in the current legal climate.
Apparently the Supreme Court undermined the previous standard for software patentability in Bilski v. Kappos in 2010. Other relevant anti-patent results include Mayo v. Prometheus and CLS Bank (not yet seen in the Supreme Court).
My point in sharing these findings is that we've moved far to the left on Tabarrok's curve, and no one seems to have acknowledged that fact. For better or worse, software patents are already almost entirely eradicated.
In software it is much harder to find out what solutions have been patented and if the solution you have in mind is one of them. Which makes reinvention more common and believable there. Patent law only changes very slowly, so it is easy to believe it isn't optimal.
> This general approach probably works well for most non-software patents as well, but I feel less confident of that. I did software for many years, and think I at least have a good feeling for how that works.
Regardless of your personal experiences, shouldn't any proposed solution to the problem in software patents explain why the solution is particular to software? Any solution that should work just as well for non-software immediately prompts the questions "If this was a good idea, wouldn't it have been tried before?" and "If software patents are unusually broken and you are applying a fix that isn't software-specific, isn't it unlikely that you're fixing the underlying problem?"
Basically, the idea is for the inventor to pose the problem first and let it sit for a while. We'd use idea markets and a random bounty to estimate which problem's solutions are likely to be reinvented and act accordingly.
Most efficient solution is to totally get rid of software patents. Rediscovery is so common in this area that it makes no sense to pretend that patents spur development in software. Software patents are an after thought.
Here is another idea: anytime prosecution occurs over an accused violation of a patent, automatically review the validity of the patent. Any patent case could then have three outcomes by default: (1) the accuser is vindicated, the accused is forced to pay damages for patent violation, and the patent is upheld in current form; (2) The accuser is rebutted, the accused is vindicated and not made to pay damages, and the patent is upheld in current form, (3) the patent is deemed inappropriate due to e.g. being too vague; no damages are awarded but the patent must be reformatted and refiled so as to make more specific and clear the protections offered by it. (I'll consider other possibilities, such as the accuser being awarded damages but also made to re-format the patent to be very unlikely.)
This might give inventors/firms more of an incentive to acquire very specific patents and give them some pause to consider the seriousness of an accusation of patent violation they plan to make -- since having the patent reformatted to something less favorable is always automatically on the table.
Homo hypocritus thinking suggests to me that firms and cabals would very much want vague, broad patents and would relish the ability to bring patent accusations against anyone at any time for seemingly random reasons. Patent trials should function somewhat like the Salem Witch Trials. But if there were frequent, implied opportunities to fix broken old patents, it might make it less worthwhile to prosecute e.g. re-discoverers who only plan to use the re-discovery privately. Only if that private use was really worth risking the current form of the patent would it be worth taking legal action.
Robert:The notion that software developers (at least) would ever read patents to learn how to build something is far fetched. Here is my evidence for that proposition:1. I have worked for technology companies of all sizes for 18 years and have never seen it happen or heard of it happening.2. Patents are inscrutable. Lawyers and patent agents write them with a view to maximizing the value of the patent by using terms that could, in the future, be interpreted to mean something like what was invented, but not exactly what was invented. This makes them very difficult to understand. If we really wanted understanding, then patent applications would be required to include several concrete examples, including (for example) actual software code.3. In part because of point #2, lawyers at software companies often warn their developers not to read patent applications, because doing so opens the compan up to triple damages in the unlikely scenario that one of those ambiguous patents gets applied to their business. This reinforces point #1.I like the idea that Robin describes. While he disclaims fairness, it seems fairer than the current approach.Also, I think that Robin's point about re-discoveres being prohibited from licensing the re-discovered invention helps reduce the importance of the lower incentive to teach about your patent. It might actually improve the teaching, since patent-holders would then have a stronger incentive to give software developers and easier way to implement the patented invention, compared to re-discovering it.Max
"Exempting rediscovery is problematic in my view, since I doubt one can prove reliably (at least, with present technology) the provenance of ideas in the re-discoverer's mind."
Actually with software it's often easier to re-invent something than to find the existing patent (I find it completely plausible the majority of people getting sued really did not know about the patent and if it's so easy to re-invent the software it's not revolutionary and did not necessitate a large investment, meaning it does not require patent protection) and with non-software patents re-creating something for your own personal use is often so difficult and time consuming that it becomes silly to sue the re-creator to disincentivize them, plus you'd get into absurd situations, especially when you apply your thinking to copyright as well, it would basically mean you could get sued for singing a copyrighted song or educating students by letting them program a patented algorithm. A patent is a legalized monopoly, it has to have limits and drawbacks, the US patent system is already the worst of pretty much the entire world (where else can you patent the rectangle?)
Also, please don't draw "the founding fathers" into this: they're the same guys who didn't care much for the rights of women and blacks, heck, even of every white male who was not a landowner, plus it's not going to convince non-Americans like myself.
Exempting rediscovery is problematic in my view, since I doubt one can prove reliably (at least, with present technology) the provenance of ideas in the re-discoverer's mind. Meanwhile, it is worth emphasizing that a patent is issued not merely as a reward, but as an exchange of valuable entities. In exchange for openly *teaching* (and this is critical) others about the detailed nature of one's invention (via the published patent), which is in fact required to show clearly, to others, how to reproduce it, and (eventually) for it to be used freely by others, the inventor is granted (but only temporarily) exclusive rights to make/produce/sell it. The inventor is free to license those rights to others, also. The Founders' intentions in creating this patent system was to encourage the use and spread of technological knowledge, not to hold it back. When inventors are granted few or no rights (and yes, I have known of such circumstances), they have great incentives to hide the details of their inventions from others (and yes, I have known them to do exactly that). The real challenge is thus to establish the best (most "efficient," if you prefer) balance of rights to be granted in exchange for "teaching" this knowledge to others. Hence, the ongoing arguments over how long patent rights, once granted, should last. I do not maintain that the status quo is perfect (or even excellent), but it's purpose, and considerable successes, need to be appreciated carefully if one is going to succeed in making it better.
A non-obvious problem with patent litigation: whether or not one infringed a patent may depend on specific technical details - and the people who have to make a decision are twelve laymen with no knowledge of the field. Good luck explaining the difference between a phase-locked loop and a ring oscillator to a bunch of English majors!
If you were planning on intentionally stealing a patent, it's hard for the patent holder to prove that it *wasn't* an accidental rediscovery...
Recent rulings makes less clear what will be enforced. Which is very different from a world without software patents.
For what it's worth, I spoke with a couple patent attorneys a week ago about IP protection for my start-up company. The impression of both law firms was that patents for "abstract ideas" are no longer worth filing. While 1998 through 2010 were a heyday of patent creation, neither law firm thought they would be enforceable in the current legal climate.
Apparently the Supreme Court undermined the previous standard for software patentability in Bilski v. Kappos in 2010. Other relevant anti-patent results include Mayo v. Prometheus and CLS Bank (not yet seen in the Supreme Court).
http://en.wikipedia.org/wik...
http://en.wikipedia.org/wik...
http://www.crowell.com/News...
My point in sharing these findings is that we've moved far to the left on Tabarrok's curve, and no one seems to have acknowledged that fact. For better or worse, software patents are already almost entirely eradicated.
In software it is much harder to find out what solutions have been patented and if the solution you have in mind is one of them. Which makes reinvention more common and believable there. Patent law only changes very slowly, so it is easy to believe it isn't optimal.
> This general approach probably works well for most non-software patents as well, but I feel less confident of that. I did software for many years, and think I at least have a good feeling for how that works.
Regardless of your personal experiences, shouldn't any proposed solution to the problem in software patents explain why the solution is particular to software? Any solution that should work just as well for non-software immediately prompts the questions "If this was a good idea, wouldn't it have been tried before?" and "If software patents are unusually broken and you are applying a fix that isn't software-specific, isn't it unlikely that you're fixing the underlying problem?"
I blogged about fixing the re-invention problem here (http://tehom-blog.blogspot....
Basically, the idea is for the inventor to pose the problem first and let it sit for a while. We'd use idea markets and a random bounty to estimate which problem's solutions are likely to be reinvented and act accordingly.
Most efficient solution is to totally get rid of software patents. Rediscovery is so common in this area that it makes no sense to pretend that patents spur development in software. Software patents are an after thought.
patent validity is a currently a big part of almost all patent litigations.
Or, you know, just implement a patent law that actually belongs in the 21st century... Just copy the European law if you have to.
Here is another idea: anytime prosecution occurs over an accused violation of a patent, automatically review the validity of the patent. Any patent case could then have three outcomes by default: (1) the accuser is vindicated, the accused is forced to pay damages for patent violation, and the patent is upheld in current form; (2) The accuser is rebutted, the accused is vindicated and not made to pay damages, and the patent is upheld in current form, (3) the patent is deemed inappropriate due to e.g. being too vague; no damages are awarded but the patent must be reformatted and refiled so as to make more specific and clear the protections offered by it. (I'll consider other possibilities, such as the accuser being awarded damages but also made to re-format the patent to be very unlikely.)
This might give inventors/firms more of an incentive to acquire very specific patents and give them some pause to consider the seriousness of an accusation of patent violation they plan to make -- since having the patent reformatted to something less favorable is always automatically on the table.
Homo hypocritus thinking suggests to me that firms and cabals would very much want vague, broad patents and would relish the ability to bring patent accusations against anyone at any time for seemingly random reasons. Patent trials should function somewhat like the Salem Witch Trials. But if there were frequent, implied opportunities to fix broken old patents, it might make it less worthwhile to prosecute e.g. re-discoverers who only plan to use the re-discovery privately. Only if that private use was really worth risking the current form of the patent would it be worth taking legal action.
Robert:The notion that software developers (at least) would ever read patents to learn how to build something is far fetched. Here is my evidence for that proposition:1. I have worked for technology companies of all sizes for 18 years and have never seen it happen or heard of it happening.2. Patents are inscrutable. Lawyers and patent agents write them with a view to maximizing the value of the patent by using terms that could, in the future, be interpreted to mean something like what was invented, but not exactly what was invented. This makes them very difficult to understand. If we really wanted understanding, then patent applications would be required to include several concrete examples, including (for example) actual software code.3. In part because of point #2, lawyers at software companies often warn their developers not to read patent applications, because doing so opens the compan up to triple damages in the unlikely scenario that one of those ambiguous patents gets applied to their business. This reinforces point #1.I like the idea that Robin describes. While he disclaims fairness, it seems fairer than the current approach.Also, I think that Robin's point about re-discoveres being prohibited from licensing the re-discovered invention helps reduce the importance of the lower incentive to teach about your patent. It might actually improve the teaching, since patent-holders would then have a stronger incentive to give software developers and easier way to implement the patented invention, compared to re-discovering it.Max
"Exempting rediscovery is problematic in my view, since I doubt one can prove reliably (at least, with present technology) the provenance of ideas in the re-discoverer's mind."
Actually with software it's often easier to re-invent something than to find the existing patent (I find it completely plausible the majority of people getting sued really did not know about the patent and if it's so easy to re-invent the software it's not revolutionary and did not necessitate a large investment, meaning it does not require patent protection) and with non-software patents re-creating something for your own personal use is often so difficult and time consuming that it becomes silly to sue the re-creator to disincentivize them, plus you'd get into absurd situations, especially when you apply your thinking to copyright as well, it would basically mean you could get sued for singing a copyrighted song or educating students by letting them program a patented algorithm. A patent is a legalized monopoly, it has to have limits and drawbacks, the US patent system is already the worst of pretty much the entire world (where else can you patent the rectangle?)
Also, please don't draw "the founding fathers" into this: they're the same guys who didn't care much for the rights of women and blacks, heck, even of every white male who was not a landowner, plus it's not going to convince non-Americans like myself.
Exempting rediscovery is problematic in my view, since I doubt one can prove reliably (at least, with present technology) the provenance of ideas in the re-discoverer's mind. Meanwhile, it is worth emphasizing that a patent is issued not merely as a reward, but as an exchange of valuable entities. In exchange for openly *teaching* (and this is critical) others about the detailed nature of one's invention (via the published patent), which is in fact required to show clearly, to others, how to reproduce it, and (eventually) for it to be used freely by others, the inventor is granted (but only temporarily) exclusive rights to make/produce/sell it. The inventor is free to license those rights to others, also. The Founders' intentions in creating this patent system was to encourage the use and spread of technological knowledge, not to hold it back. When inventors are granted few or no rights (and yes, I have known of such circumstances), they have great incentives to hide the details of their inventions from others (and yes, I have known them to do exactly that). The real challenge is thus to establish the best (most "efficient," if you prefer) balance of rights to be granted in exchange for "teaching" this knowledge to others. Hence, the ongoing arguments over how long patent rights, once granted, should last. I do not maintain that the status quo is perfect (or even excellent), but it's purpose, and considerable successes, need to be appreciated carefully if one is going to succeed in making it better.
Too broad perhaps, but hardly meaningless. That would imply that who is said to violate which patents is completely random.
I don't much care what is fair. I care what is efficient. I outlined efficiency arguments for excusing re-discovery.