Shut down the patent office?

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.
Written by John Carroll, Contributor

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 Google...er, 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.

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