Shut down the patent office?

Shut down the patent office?

Summary: Last week, I took Apple to task for launching the patent nukes against HTC. This week, I try to explain why patents are so corrosive within a software development context.

TOPICS: Legal, Apple

Last week, I pulled out the verbal bazooka to fire a well-deserved blast in Apple's direction for their patent malfeasance. By "malfeasance," I don't mean that Apple is technically breaking any laws. Rather, I have no patience for companies that use idea ownership in an aggressive fashion, even as I remain confident that it will blow up horribly in their face when they realize that waging patent war is a bit like the European powers thinking they could conquer each other in 1914. As I said last week, Apple makes a bad patent troll, as they make a lot of products, and their competitors have big stacks of patents of their own.

But, a lot of the people in the Talkbacks clearly had no idea what I was talking about. What am I, a communist? What do I have against intellectual property? If making illegal copies of music CDs is wrong, why isn't it wrong, say, for the Android to use a little graphical widget to "unlock" access to the phone (which is one of the 20 patents Apple is using against, HTC).

Making copies of music CDs and copying a concept are COMPLETELY different. Copyright, which covers the wholesale copying of CDs, books, movies and other sources of content AS CREATED by an individual or group, is completely different than, say, ownership of all uses of a special field where the inputed characters is hidden from view as you type, and is used to grant access to some kind of system or service (a password field). Don't worry, nobody owns a patent on the password field, but someone COULD have, and that's the problem. The point I was making last week is that nobody SHOULD own ideas and concepts like that, and I get very annoyed with those people (a.k.a. "fanboys") whose principles shift according to whether the wind fills the sails of their favored company and / or product.

If someone were to make copies of Apple software and distribute them without Apple's consent, I would go after such a company in my blog. Apple CREATED that code, just as J.K. Rowling created a series of books based around a boy wizard named Harry Potter. What makes me seethe with developer rage is when Apple claims to own certain concepts in that code which nobody has a right to claim to own.

The reason ownership of ideas is so corrosive to innovation is not hard to discern, though the complexity in this case is that most people are not programmers, and thus are unlikely to understand why ownership of the concepts underlying movable widgets on a screen is so destructive. Think of it this way. J.K. Rowling should be defended against people who would copy her book wholesale and make discounted copies to sell on street corners. That's flat-out theft, and allowing people to do that would undermine the incentive to create artistic expression in the first place.

What she should not be allowed to do, however, is prevent people from writing about boy wizards forced to live among non-magical humans and chased by evil forces who want to kill him. The protections in the previous paragraph secure Ms. Rowling's right to the words she actually wrote. In contrast, owning the concept of young wizards going through puberty is something that no patent office would protect, because most people understand that it is silly to presume that someone can own a narrative.

Concepts or storylines are no different, conceptually, than patents on software algorithms or "busines processes" (the latter of which is what allowed Amazon to prevent Barnes & Noble from creating a "one-click" payment system).

If concepts or storylines were patentable, we would have no Daffy Duck (aaiiigh, everyone run screaming from the room at the very thought of such horror). Daffy Duck was clearly a response by Warner Bros to the popularity of a certain pale Disney duck with anger issues and an allergy for wearing pants. Granted, Warner Brothers' creation had better diction, but the similarities are so obvious as to be hard to ignore. Fortunately for Warner Brothers (and cartoon lovers everywhere), Disney isn't allowed to own the concept of angry animated water fowl.

Ideas are like pieces in a very large puzzle. If one person claims to own any of the pieces, then NOBODY can complete the puzzle. Right now, software companies around the world own so many patents that, if they were all to be leveraged at once to generate maximum revenue, none of the software in existence would remain untouched. That applies to "closed source" software as much as the open variety, because patents are so numerous and difficult to grok that most programmers will stumble across several in the course of a single project without even realizing it.

That is a problem, because ideas are the stone blocks in the pyramid of ideas. Ownership of any one block jeopardizes the blocks higher up, making those improvements that much less likely to be developed in the first place.

Granted, the patent effect may vary. It was possible to work around the LZW patent that underlay the GIF image format, an algorithm that Unisys sat upon until GIF found sudden popularity in a rapidly growing Internet. It's a lot harder to work around Patent #6,424,354, which would claim that Apple owns the concept of event generating objects triggering user interface components on screen. An argument could be made that the common MVC design pattern runs afoul of this.

As the title of this post would suggest, I've started to wonder whether there is any real point in having a patent system at all (well, started is the wrong word, as I've asked this question many times before). Do patents serve a useful purpose, or are they just an anachronism, a vestige of a time when governments granted monopoly rights over entire industries?

One argument made in favor of patents is that it serves as an IP stake in the ground that gives Venture Capital firms the confidence to invest in new startups. But would Venture Capital firms really not invest in startups because there was no patent system in place? The artificial confidence bred by something as difficult to defend as a patent is a distraction. Far more important is the drive and experience of the management team and the insight and intelligence of the guys actually making and designing the products. Granted, those are hard things to gauge, but imaginary walls aren't any more secure, and the skills of the people involved need to be gauged, anyway. Focusing on what matters would probably lead to better startups, anyway.

Another argument is that patents enable companies to spend money on expensive research safe in the knowledge that they will get a return on their investment due to the 20 year monopoly rights they have over the result. The example most used is the pharmaceutical industry, where bringing a product to market can cost in the billions (the notion that software companies would spend billions developing a sliding unlock icon is ludicrous, so it doesn't merit inclusion).

However, I don't know that the pharmaceutical industry is a pillar of productivity that justifies the creation of a system of state-created time-limited monopoly. First, some parts of that "bringing to market" process is unnecessarily expensive and slow. The approval process for a new drug can take many, many years, a process that resists streamlining because the drug companies make enough money to afford it, and probably don't want it streamlined as it would lead to more competition. Likewise, a big part of bringing a product to market is marketing it, and the largest component of that, at least in the United States, are the incessant TV ads with which Americans are bombarded on television. Polls show that Americans know the names of more drugs and drug companies than people who live anywhere else.

I'm also not convinced that the drug companies really add the value that they claim they do. A common complaint is that drug companies rarely create drugs that FIX problems, so much as drugs that TREAT symptoms. From an economic incentives standpoint, that shouldn't surprise anyone, as actually fixing a problem would lead to a very short shelf life for a new drug. The patent system is also a real hindrance to the developing world, as patents give drug companies the right to charge prices that no AIDS patient in Zimbabwe could afford in an entire lifetime.

My point is that monopoly rights on drugs haven't had tremendous results. A different system IS possible, perhaps with R&D funded by other sources with more of an interest in permanent cures than ongoing revenue streams.

But, patents are a fact of capitalism, and to get rid of them is like moving down the slippery slope towards communism, right? Really? Monopoly rights are an essential component of capitalism? Contrary to popular belief, capitalism isn't a system of spontaneous organization. It consists of a set of laws whose only unifying thread is that they have results that benefit people from an economic standpoint. To make a very geeky comparison, it's a bit like thinking what a parallel universe with a slightly different set of physical laws might look like. Some universes, ours included, produce black holes and suns that produce heavy elements and live for a sufficiently long period as to be conducive to the development of life. Others are dark, lifeless voids which lack the ability to create anything beyond helium. Economic systems are frameworks, in other words, that are either tuned well or badly.

Copyright periods should only be as long as necessary to provide a return on investment and incentive to create. Patents, a purely artificial and state-created notion, should only exist if they truly provide value to society. I'm proposing here that they add little in the way of value.

A number of people pointed out in my previous post that Apple was the subject of lawsuits by companies as diverse as Nokia and Kodak (as if that justified Apple's actions; kids, the next time a bully hits you in the hallway, spit in the face of the smaller kid that sits behind you). Well, without patents, Apple wouldn't have faced these kinds of attacks.

Is Apple acting within the law? Yes, but then again, so were the bankers that farmed off securities containing a mix of normal and toxic assets, thus hiding the sub-prime contagion and inflating the real estate bubble which popped so catastrophically a few years ago. I think the problem we have in this country is that we think the limit of ethics and morality is whatever we can get away with legally. That puts a heck of a lot of stress on lawmakers, who as long as they are human, will make imperfect laws.

I know this will piss of a lot of Apple fans, but Microsoft owns a heck of a lot more patents than Apple does (and certainly than Google, which as this chart shows, may be somewhat exposed from a patent defense standpoint). When was the last time Microsoft went on a patent jihad against a close competitor? Patent innuendo war...maybe, though I discuss that in this 2007 post.

There would be a lot of resistance to an eradication of the patent system, particularly from the large companies that are its biggest beneficiaries (patents are like weedkiller...they keep smaller competitors at bay). But, after the patent trench warfare that is likely to occur as software companies scramble to secure territory in a key platform of the future, perhaps more will realize that the patent process is an expensive waste of money. It serves no purpose but to enrich a bunch of lawyers.

It should be stopped, or at least dramatically reformed. And hell yes, I will attack viciously any company that uses those patents aggressively. It was wrong for Nokia to sue Apple. It is also wrong for Apple to sue HTC. It's pure patent-related predation.

Apple is trying to block innovation in the space by hobbling other companies ability to tap into the normal flow of ideas that makes software development such a dynamic industry to work in. That would be criminal in a rational universe. The fact it isn't in this one doesn't make it any less wrong.

Topics: Legal, Apple

John Carroll

About John Carroll

John Carroll has delivered his opinion on ZDNet since the last millennium. Since May 2008, he is no longer a Microsoft employee. He is currently working at a unified messaging-related startup.

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  • Excellent point.

    • Agreed

      The USPTO is the problem here.
      • So are companies that abuse it

        The USPTO isn't the only problem, so are the companies that deliberately abuse it. Microsoft has been slammed, hated and reviled for *threatening* patent war (for good reason).

        Companies who actually use IP to shut down competition are loathesome without compare. Evil isn't nearly a strong enough word for it. And in the case of Apple, many of whose patents are based on prior art from other researchers and companies (this is a nice way of saying they stole them), it is the antithesis of everything that they supposedely stand for.

        I utterly despise Apple for what they've become, and I used to be as rabid a fanboy as existed.
        Rob Oakes
        • Agreed, but...

          If the USPTO could be corrected, that would take care of many other problems as well.
        • All patents based on prior art - do you know how to read patents?

          [i]And in the case of Apple, many of whose patents are based on prior
          art from other researchers and companies (this is a nice way of saying
          they stole them),[/i]
          No, it is a nice way of illustrating that you are speaking garbage.

          Patents always reference prior art, they are meant to.

          A patent is a document describing the difference between what is
          being invented and what existed before, to do that it must refer to the
          state of the art before the invention.

          The only part being patented is the difference. The prior art is not
          covered by the patent, that is why it is there.

          Also required in a patent is enough detail to make implementation of
          the idea possible to a person with only basic knowledge of the area of
          endeavour. This need requires technology other than the part being
          protected from being referenced.

          I suggest you talk to an expert before accusing people of theft.

          They might explain to you what the Claims section is about. Claim 1 is
          basically the patent, the other claims usually fall into the context of
          claim 1, the rest of the document is supporting explanation.

          And by the way anything in prior art is not patentable, the theft does
          not exist.

          If prior art showing the technology is found to have been published,
          then the patent will not hold up.

          What you are alleging is just ridiculous, but then you are not the only
          one to have made this claim on these blogs.

          [i]it is the antithesis of everything that they supposedely stand for.[/i]

          No it is a sign of your ignorance not preventing your commenting.

          [i]I utterly despise Apple for what they've become, and I used to be as
          rabid a fanboy as existed.[/i]
          Yeah, tell us another one!!!!

          If you were you should rethink your attitude, as becoming an enemy
          because of your ignorance is not very wise is it?

          But then I don't suggest becoming a rabid fanboy, just become a
          satisfied user, like a normal Apple customer.

          Leave the rabid fanboy stuff to the Windows people, they need it.
  • RE: Shut down the patent office?

    Here here!!
    Way to go for taking such a controversial stance, John!
    I completely agree.
    It serves no purpose except to stifle innovation and make lawyers rich.
    Thanks for posting this! How do we make it happen????
  • RE: Shut down the patent office?

    Is there such thing as a good lawyer?
    • Not the lawyers

      It isn't the lawyers that are the problem, but rather the business and corrupt politicians who employ their services.
      Rob Oakes
      • True

        I agree, but I am also wondering if there is such
        a thing as a good lawyer. They could not get
        involved in these sort of ridiculous lawsuits, but
        alas they do b/c of the almighty dollar. Who
        cares about ethics or morality when you get loads
        of cash, right?
        • Agreed

          And I just realized, there are many top executives and evil politicians who happen to be lawyers by training. Maybe my theory doesn't hold water.
          Rob Oakes
  • You are preaching to the choir

    As far as I'm concerned, the constitution should be amended to say that ideas can never be protected - only their implementations. Regarding software patents, unless a company challenges it all the way to the Supreme Court, I don't think anything is going to change. I even think that MS is playing a dangerous game supporting patents, because odds are that sooner or later, dangerous ones will get through to it, costing the company billions of dollars. Absolutely no developer can write an application today without infringing on several patents. And if every patent was rigorously enforced, they would all shut down the software industry.

    As for patents in bio tech. I think they contribute a great deal to the monstrous prices of drugs - and thwart competition. I believe if patents were generally gotten rid of, the world economies would overall improve. Complex, valuable inventions in bio-tech and other industries, could be protected by other mechanisms such as Trade Secrets and anti-reverse engineering laws. Of course software and other IP could remain protected under copyright law.

    There are many IP protection mechanisms that work well. I believe getting rid of patents, and relying on other IP protection systems would do world economies a lot of good.
    P. Douglas
    • The problem

      @P. Douglas:
      "As far as I'm concerned, the constitution should be amended to say
      that ideas can never be protected - only their implementations."

      The real problem is people babbling about things they don't
      understand in blogs like this.

      NO intellectual property law protects ideas. Copyrights, trademarks,
      and patent law are ALL about protecting implementations.

      For example, take Apple's 'swipe to unlock' patent. The idea is that
      you have a phone that locks itself and you need to unlock it some
      way. That idea is not protectible.

      There are a zillion ways you might unlock a phone:
      - swipe to unlock
      - push a physical button
      - slide a physical switch
      - shake the phone
      - touch a specific place on the screen
      - touch a sensor with your tongue
      - and an infinite number more.

      Apple chose to develop one specific method (or implementation, if you
      will) of unlocking a phone - swipe to unlock. They did NOT patent the
      idea of unlocking a phone.

      So, your own definition fully supports what Apple did.

      95% of the posts here (and most of the bloggers on ZDNet) are
      similarly misguided.
      • Ideas vs. Implementations

        It is true that unlocking a phone may be considered an idea; but it is also true that the action 'swipe to lock' can also be considered an idea, because it is a mental conception of something. An implementation of an idea requires the production of something - such as a physical object, code, or an artistic rendering. Therefore if you can conceive of something in your mind (e.g. 'swipe to lock') it is merely an idea. It is only when you produce something that captures your idea, that you have an implementation of your idea. As John Carroll and others have suggested, it is reasonable to protect [b]specific work[/b] expended to implement an idea such as 'swipe to lock', but the idea or mental conception of 'swipe to lock' should itself never be protected.
        P. Douglas
        • It's also true that...

          rolling a little ball in an enclosure is an [i]idea[/i], therefore the patents
          (and there are many) on the mouse are invalid.
  • Superb article! Five Stars!

    I applaud your chutzpah for daring to state the obvious, yet not fearing being reprimanded by an army of narrow-minded zealots.

    Courage is knowing what not to fear.
    ~ Plato[/i]
  • How much is invested in a patent

    I'm only picking on Microsoft because I've heard it state that it's goal is 3000 patents a year. That's more than eight patents a day, every day.

    The question was asked how much is invested in a software patent?

    If MS was granted 3000 patents last year and spent all it's revenues on patents, I figure each patent cost an average of ~$17M.

    If a quarter of MS's revenues is spent on R&D each patent cost an average of ~$4M.

    If half of MS's R&D budget is spent on acquiring patents, the average cost is ~$2M per patent. Minus the costs of lawyering the patent through the process.

    Does anyone think MS spends $16M-$17M per day on acquiring patents? Seems about right.

    Lots of assumptions, I agree. Just thought I'd throw it out there.

    none none
    • Yes, lots of assumptions.

      Silly ones. For starters, patents are not the sole driver of R&D. Considering that, the whole exercise breaks down.
      Lester Young
    • I've heard it through the grapevine -- Who are they?

      Yeah, well...

      Instead of conjectures consider these facts:

      [quote name='WinTard' date='09 March 2010 - 02:00 PM' timestamp='1268161246' post='329561']
      I think it is a great honor to be a Microsoft Fellow. Kudos to Charles P Thacker for the ACM Turing Award!

      [quote]Google: Results 1 - 10 of about 529,000 for microsoft fellows. (0.30 seconds)
      Microsoft Technical Fellows: Recognized technical leaders in the ...
      A Technical Fellow's technical vision, expertise and world-class leadership is commensurate with that of a corporate vice president focused on business ...

      Also the likes of David Cutler, and Mark Russinovich...

      Giants in the IT field IMHO.

      I found out about this award on Dr Dobb's Journal here: http://www.drdobbs.c...ndows/223300024 it's a bit more detailed.

      Interesting fellows they have at Microsoft don't you think?

      Live a good, honorable life. Then when you get older and think back, you'll be able to enjoy it a second time.
      ~ Dalai Lama

      Now that is True Research & Development. True innovation. Don't know what I'm talking about?

      Results 1 - 10 of about 435,000 for ACM Turing award. (0.39 seconds)

      Who need patents? No seriously?
      • And in other news there was rain in England...

        You did perchance notice that your facts had nothing to do with his conjecture, and hence was about as useful as knowing it rained today in England, and for that matter other places too.

        Well, if you were in the right place, knowing it was raining might have been some help.
        • I think he is following HTC logic with that irrelevance

          I understand HTC is trying to show they have been inventive by putting
          out a history of their developments.

          The logic I gather is to say Apple has no right to defend their IP, as
          HTC has developed other technology so they have a right to pinch
          Apple's work.

          I think this is an extension of that PR campaign, and it relies on some
          twisted logic.

          I should apply it to them, I have IP Protection granted because I have
          innovated. I now have the right to rip off HTC and MS apparently.