I have a number of friends who are patent attorneys. Some have strong negative feelings about software patents that mirror mine while others keep me entertained by arguing both sides of the situation with themselves while I sit around and listen. One of my friends – let’s call him Sawyer – has very strong negative opinions as he’s spent most of his time recently defending his clients against software patent suits including an increasing number from ~~patent trolls~~ (non-practicing entities). He spends a lot of time in East Marshall, Texas and has figured out where all the best restaurants are. While East Marshall isn’t quite as nice as an invisible, mysterious island in the middle of the Pacific Ocean, it clearly has a number of similar characteristics. Sawyer has decided that he can’t write publicly about his thoughts and experiences so I’ve agreed to channel his experience into my own parallel universe. Look for more missives from him (and better references from me with regard to Lost as I finally learn what really has been going on.) In the mean time here’s his reaction to the New York Times profile last week on Intellectual Ventures.

Last week there was an article in the New York Times profiling Nathan Myhrvold and his company Intellectual Ventures ("IV"). I suppose since it’s a profile, the article is by nature one-sided, but given how I broke into a cold sweat upon reading it, I was a little surprised at how unbalanced the presentation was on the merits. Mr. Myhrvold is characterized as a savior of inventors while his detractors are those big scary companies who want to infringe patents without compensation to the little guys.

What is the underlying premise of IV as a net positive for innovation and the U.S. economy? The traditional defense is that patents incentivize innovation. That has to mean innovation in a particular field, e.g., "software patents incentivize innovation in software." Let me underscore this point: there is no positive evidence for software patents improving or increasing innovation in software. None. I could make the same statement for pretty much any other field except biotech (which has its own problems that can be explored another time). There are a variety of articles setting forth why patents actually hurt innovation in software particularly, (e.g., the famous Bessen and Maskin working paper on the subject). Note that raw empirical data is hard to come by either way by nature of how the patent system operates, but the lack of positive evidence is telling.

Perhaps Mr. Myrhvold recognizes this, because in the article he says “I’m trying to get inventions that kind of respect as an economic entity.” (Emphasis added). IV apparently incentivizes innovation on…inventions? "Inventions" are actually a term of art in patent law, they are the things for which one can legally be granted patent rights. IV, therefore, seems to admit that it wants to enforce patent rights so that we can…have more patents. Mr. Myhrvold wants to create an entire economic category based on payments to entitles that don’t build, produce, sell, etc, any products, or create anything of value (i.e., that don’t innovate, at least in any useful way that advances human progress), in exchange for not being sued on exclusionary patent rights.

Let’s internalize that for a second. IV has collected over a billion dollars so that it can get more patents. They make no products. They apparently don’t funnel ideas to anyone else who makes products. Heck, the only useful thing I’ve seen out of IV is that mosquito-killing laser that Mr. Myhrvold showed off at TED this year. They collect massive amounts of money for their investors, and funnel much of it into buying and developing more patents. When I talked to a headhunter recently, in the midst of the worst market for legal jobs ever, she told me that the one employer who was always hiring people with experience in patents was IV. So, anecdotally, they hire a lot of lawyers. They set up a lot of shell companies. They sue people, or threaten to sue people, for massive license fees.

Now think about where this money would go otherwise. Microsoft, Apple, and Google, not to mention other large technology companies, have sizable legal departments with teams of attorneys focused full-time on managing the 50+ software patent cases they each are a defendant on. My guess is that they individually spend hundreds of millions of dollars defending and settling such suits per year. Most of the suits are backed by investment funds (here’s an example of one) through shell entities. Many of these funds are backed (with no transparency) by traditional investment banks and hedge funds. What we have, then, is a net outflow, on a yearly basis, of at least several hundred million dollars, from technology companies who "make stuff" and unquestionably innovate, to speculators and investors who don’t. I don’t think that baseline fact is something anyone would question. IV dresses that up in the clothing of "invention," but they’re really just out to capitalize on a broken patent system like every other non-practicing entity ("NPE" as we call them – they hate being called trolls). What kinds of cool products and technologies would that money be used to develop? We’ll never know, I suppose. At the very least we can presume that the pace of innovation in technology is being slowed by this net outflow of capital to non-innovating parties.

One thing I haven’t mentioned is that it isn’t just big companies who get sued. Startups, especially in software, are constantly targetted by patent suits, especially by pseudo-competitors who want to kill more innovative upstarts. How many great companies have been sunk by the costs of patent litigation? Think about it this way – if Facebook had been sued on a social networking patent within a year of its existence, would it be around today? It’s doubtful.

Finally, I think it’s important to address the moral point that’s always in the background when NPE’s talk about their business – having a patent doesn’t mean that you really invented anything, or that the person you’re suing would actually infringe in a rational world (the U.S. Constitution also only allows Congress to grant patents for "promoting progress," not for moral reasons). Patents are legal documents, highly opaque, and the meaning of patent claims rarely, if ever, rationally corresponds to a real world product. Patents are granted through a pseudo-adversarial administrative procedure where highly trained lawyers do their best to push extremely broad claims with extremely sparse/vague disclosure through overworked and underpaid patent examiners. That’s the name of the game. As much as companies like IV want to turn patent enforcement into a moral issue, it isn’t. Patent lawyers are paid to get broad patents, not capture the essence of a real "invention." And alleged infringers, in every case I’ve been involved in at least, don’t flagrantly violate patents. They’re caught unaware, and even when they are aware, have the impossible task of figuring out if they would infringe. It’s really a difficult Catch-22, but the patentees enjoy it, because it allows them to call defendants the "bad guys" while taking the moral high ground.

http://twitter.com/PeonsGuide @PeonsGuide

I think "Sawyer" brings up the critical other side of this debate. We are discussing the general merit of patents (and lack thereof) but maybe all we need are just some updates to the legal patent acquisition process and its requirements.

I'm obviously not a lawyer, but I'm willing to bet that some of those laws were written many years ago when vague process descriptions were acceptable and when people didn't even think about the possibility of patents stifling innovation. I think we can agree that all patents aren't bad but maybe the process of getting them is. Maybe the government needs to hire (and adequately compensate) better lawyers. Maybe the process descriptions need to be more specific. Maybe acquiring a final patent should require demonstration of its use, etc.

Maybe some meaningful updates to the legal process can actually strike a middle ground.
http://AndrewMayne.com Andrew Mayne

How can we empirically test this statement?

"Let me underscore this point: there is no positive evidence for software patents improving or increasing innovation in software. None. "

If I point out that Google got start-up capital because PageRank could be patented, doesn't that invalidate the premise? Google has created a lot of innovation because it got funding in the first place – funding that may not have happened if the VCs didn't think they'd have some additional protection on their investment.

Saying there is no evidence without qualifying what would count as evidence doesn't frame the discussion in an objective way.
Anon Inventor

Brad – and fellow readers,

I post this anonymously and somewhat vaguely specifically because I may be a target soon.

I run a technology startup now in our 7th year. The field we work in is about 15 years from mainstream (similar to nano-tech perhaps), though bits and pieces of what we do have been around for about 40 years, with NASA being a high profile practitioner of what we do. There are several startups in various stages but there is one company that is far ahead in funding and commercialization, though not in innovation or age. This company has been issued several patents that began issuing in 2001. I should also mention that this company focuses not on the underlying technology (eg, Software) but on a narrow and specific application of it (eg Medical Billing Software). However, SOMEHOW, they were able to convince the Patent Office to grant them WIDE-RANGING patents on the underlying technologies (eg, Computer, Monitor, the Mouse, and even the Mouse Pad).

Patents (according to law) must meet two criteria: Novel and None-Obvious. As for the novelty, besides NASA's high profile work, in 1997 and again in 1998, there was several papers and a book respectively that discussed IN-DEPTH, the details of the exact same product these guys got a patent on in 2001 (and 3 more afterwards). They have five patents that I know of, each with 100+ claims. Without exageration, there are 3, arguably 4 claims in all, that meet both the Novel and None-obvious criteria. The rest have either been done EXACTLY the same, or are so obvious that should have NEVER been granted as patents.

In 2003, this company picked one of the other startups (my competitor) to sue. This startup had ONE prototype, no funding, and clearly not targeting anything close to the market the patent-holder was focused on. My best guess is that they picked this particular startup, specifically because the patent-holders felt that they were a weak target and could be overcome easily, thus scaring all the other startups, and detering others to entre the space.

I asked my competitor why they simply didn't show the judge the Prior Art that has been around since 1970s anecdotally via NASA, and in FULL DETAIL in the form of research papers and books in 1997-98, and get the case thrown out. The answer really scared me: all patents are presumed valid unless you prove them invalid THROUGH THE PATENT OFFICE.

So the fight, could not be fought in court, but rather, they had to challenge the Patent Office and invalidate and/or narrow the scope of the patents that were issued…

Then, and only then, could they COME BACK to court, show the invalidated/narrowed patents, and try to win this fight. If you've worked with the patent office, you know how lengthy/expensive this can be.

Some lessons I learned:

1 – There are some nonsensical patents out there. The patents that this company holds, should have NEVER been issued in the first place. None of them pass neither the Novel nor the None-obvious criteria… but nevertheless, they were issued – and as such – they can sue any of us startups out there and WIN the court battle, unless we challenge them at the Patent Office level.

2 – If you find yourself on the defending side of this fight, be ready to dish out a LOT OF CASH and time. For a startup (like my competitor) this virtually put them out of business… which is an absolute shame.

3 – My competitor DID manage to severely narrow the scope of the patent-holder's claims and in most cases, invalidate many of the claims. However, they ended up settling the case out of court because they ran out of money, DESPITE the fact that they succeeded in narrowing/invalidating the claims of the offending company.

4 – The patent system is SEVERELY flawed! Perhaps as entrepreneurs and innovators, it is UP TO US to lead the effort in reforming this flawed system.

Thank you Brad for shedding light on this. I'm happy to support in any way I can.

My apologies for the lengthy post!
Jonas Maebe

> If I point out that Google got start-up capital because
> PageRank could be patented, doesn't that invalidate
> the premise?
[snip]
> funding that may not have happened if the
> VCs didn't think they'd have some additional
> protection on their investment

So do you know that Google got funding thanks to their patent application (it wasn't granted yet at the time they got the funding), or are you, as the second paragraph implies, simply supposing that?

In the latter case, it could just as well be funding that VC's provided in spite of their realisation that the existence of software patents threatened their investments more than it safeguarded them: http://web.archive.org/web/20070804233425/http://…

And then there's still another point in that *if* software patents are available, the VC companies may prefer that their startups procure them, but this does not necessarily mean that they think that software patents as a concept are a good idea (and especially not that they would stop providing funding if there were no software patents to be had).

FWIW, Google itself argued against software patents in the Amicus Brief they submitted in the Bilski case: http://en.swpat.org/wiki/Google. So it seems that they don't consider their software patents very important to their business or innovation either.

And please don't retort with the age-old "that's because big companies want to be able to steal from small companies, while small companies can only survive thanks to patents"-fallacy. Unless they are non-producing entities employing more lawyers than engineers, no single small company could take on Google in court, just like Sun couldn't take on IBM in 2002: http://www.forbes.com/asap/2002/0624/044.html
Jonas Maebe

Sorry, the Google on Bilski link got mangled due to the period ending the sentence. Here's the correct link: http://en.swpat.org/wiki/Google
http://www.facebook.com/profile.php?id=665050887 Michael McGrath

Regardless of how Bilski ends up, the USPTO will be forced to implement a more aggressive peer-to-patent. If the anti-software patent stepped up they could destroy the claims of almost any conceivable software patent. I like this strategy as it eliminates lobbied legislators from the equation and evens the playing field.
another anon

IMHO the tech industry is going to keep getting reamed and leached-off-of by spongers until such time as they start playing hardball.

A good start would be amending the terms of the GPL and other open-source licenses s.t. it's contrary to the terms of the license to use the software in service of prosecuting any case of patent-infringement without the express written consent of the copyright holder; MS could cut this off at the knees if it wanted to by taking a similar step (by accepting the terms of this clickwrap license you agree that thou shalt not use this copy of word in service of patent infringement cases against MS) but is unlikely to do so.
KSR

Can a good software patent exist?

What do you think of the RSA patents, which enabled Internet commerce? How about GPS monitoring/processing patents, which help keep planes from (accidentally) crashing? The early image processing patents — all from sophisticated labs with many in the field Ph.D. researchers — enabled digital video. Many of those patents created entire new fields.

Not sure where PageRank comes out.

Why not address the proximate problem: junk patents and reasonable royalties? That's exactly what recent case law is doing.
http://intensedebate.com/people/bfeld bfeld

I thought I’d left a similar comment on my previous post <a href="http://www.feld.com/wp/archives/2010/02/phenomenal-essay-on-why-software-patents-are-the-problem.html.http://www.feld.com/wp/archives/2010/02/phenomena… /> Here’s what I said.There is a big debate about the fundamental patentability of software. If you recall, software patents didn’t emerge until post State Street and Bilski. One of the best books ever on this is Math You Can’t Use by Ben Klemens – well worth reading – <a href="http://www.amazon.com/Math-You-Cant-Use-Copyright/dp/0815749422http://www.amazon.com/Math-You-Cant-Use-Copyright… />I’m strongly in the camp that there is no such thing as a valid software patent. In addition, the whole idea that the RSA patents enabled Internet commerce is ludicrous in my book. It’s a nice assertion about the importance of the RSA patents, but Internet commerce would have happened just fine without them. I haven’t read the GPS patents so I don’t feel qualified to weigh in there but the image compression patents are another interesting case where there are actually huge issues surrounding their viability and – in some cases – strong assertions that they actually have slowed down innovation in some areas.
http://brokensymmetry.typepad.com Michael F. Martin

There are good reasons for why that Bessen and Maskin paper stayed a working paper.

http://brokensymmetry.typepad.com/broken_symmetry…

More interesting would have been your friend's reactions to the HBR piece by Myhrvold.
Guest

The issue is whether those ideas would have been developed without the patent system. All of the examples you cite seem to be ideas that would have been developed anyway.

As to RSA, I am familiar enough with the history to know that the RSA algorithms would have been developed had they not been patented. Without patents, RSA just may have kept the algorithms as trade secrets, which would potentially have caused others to develop different/better encryption/decryption schemes. Either way, those patents did very little, if anything, to enable e-commerce. It isn't even clear if they allowed RSA to thrive as a business, since RSA made its money off of selling software implementations and packages using the algorithms that were more efficient than its competitors.

We shouldn't conflate underlying software technology with the patents filed for after the technology is developed. The question is what downstream development the existence of those patents caused or squelched.
http://AndrewMayne.com Andrew Mayne

I'm very skeptical of software patents myself. However, I think the arguments pro and con should be approached objectively.

The VC community treats them as a factor in providing capital for a start up and there is a belief that they can give a market advantage (real or unreal).

It's reasonable to assume that as a whole VC's have a wide variety of opinions on the utility of software patents and that plays a factor in how they invest. Myhrvold, one of the biggest of them all seems to be in favor of them. Others are skeptical and consider them a threat to innovation.

Given the size of patent portfolios of more established companies it can make releasing new technologies a minefield. (BTW: I wouldn't use Sun circa 2002 as an example of rational decision making.)

My point is to avoid a tautology in the discussion. Saying they don't increase innovation at all doesn't reflect the perceived value they have in the start-up community. Maybe that value is illusory (and probably is). But I think that should be discussed and not waved off. And hopefully discussed politely…
KSR

I missed your other reply. Sorry about that, and thanks for both replies.

Maybe Internet commerce would have happened without public key crypto, but right now public key crypto is a basis for important Internet commerce infrastructure. It's not clear to me what could substitute for public key crypto, so I don't see what's ludicrous about my claim. What crypto could substitute?

What are the huge validity issues surrounding the early image compression patents? The MPEG LA pools seem to be chugging along — however clumsily.

Why is software different from categories you should should benefit from patent protection? "Biology You Can't Use" would be an interesting book. How about "Turbofan Compressor Designs You Can't Use"? I assume you'd think both of those books are dumb. Why is software different?

I'm all for getting rid of junk patents and junk litigation. The more firepower there, the better. And the junk software patents are obviously a drag on everybody. Mabye Myhrvold could invent a laser weapon for zapping bad patents.
KSR

"All of the examples you cite seem to be ideas that would have been developed anyway."

Why do you think that?

"Without patents, RSA just may have kept the algorithms as trade secrets, which would potentially have caused others to develop different/better encryption/decryption schemes."

RSA couldn't have been kept as trade secrets because (1) code has to be distributed and especially (2) no one would have trusted it without verifying the approach.

Furthermore, almost certainly better schemes can be developed based on patents because patents are published. When advances are kept secret, they can't be advanced by others. That's a trade off with patents: The holder gets a monopoly, but he also has to tell everyone what he's doing.

"Either way, those patents did very little, if anything, to enable e-commerce."

The evidence completely disagrees. Public key crypto is still widely used in Internet commerce. Go read up on SSL, HTTPS, etc.
KSR

Good discussion and pointer re Bessen.

Funny that the software industry is held out as an example where innovation is impeded. Seems pretty innovative to me.
Jonas Maebe

> Maybe Internet commerce would have happened
> without public key crypto

The RSA algorithm was developed in the context of the company's founders' PhD research at MIT. In fact, it was even published before a patent had been applied for, which meant that they could only apply for a patent in the US, because there is no grace period in (almost all of?) the rest of the world.

So without software patents, we'd still have public key crypto in the form of RSA. The main practical difference would have been that companies operating in the US wouldn't have been at a competitive disadvantage for 16 years compared to the rest of the world due to the need to pay patent royalties to RSA.
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KSR

Good point about competitive disadvantages internationally. I recall doing research in the US with SSLeay, which was from Australia if I remember. Couldn't get RSA code cheaply or easily or something. You're right. I guess that patent harmonization stuff (Uruguay?) didn't get the job done.

On a related front, the US had export restrictions on crypto — as you no doubt know. Haven't kept up with export restrictions these days.

As for "So without software patents, we'd still have public key crypto in the form of RSA", I think I agree. I was arguing against the proposition that RSA public key crypto wasn't instrumental in commerce. (Also that the RSA patents were junk in some sense — but I don't think anybody argued otherwise. Not sure.)
KSR

But note that Jonas Maebe points out that RSA was mostly published before the patent applications.
http://intensedebate.com/people/bfeld bfeld

“Math You Can’t Use” is a lot more interesting than “Turbofan Compressor Designs You Can’t Use” because you can build a Turbofan Compressor, but you can’t build a Math. It reminds me of the old grammar trick for figuring out adverbs: “The squirrel ran _blank_ly up the tree.”Public key crypto did not require a patent. And Internet commerce does not require public key crypto.Re: MPEG – I was thinking about the MP3 / Fraunhofer nonsense that Microsoft got tangled up in.
Jonas Maebe

> Funny that the software industry is held out
> as an example where innovation is impeded.
> Seems pretty innovative to me.

Funny that Africa is held out as a continent where child mortality is very high. Seems to be lots of people in Africa to me.

(I got that from someone else, but for the life of me I can't remember who it was)

Yes, I think that we can safely establish that software patents have indeed not ended innovation in the software world. Hallelujah.
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http://www.facebook.com/derekscruggs Derek Scruggs

"Yes, I think that we can safely establish that software patents have indeed not ended innovation in the software world. Halleluja"

Reductio ad absurdum. The burden of proof is on you, Myrhvold and other patent supporters that there is "positive evidence for software patents improving or increasing innovation in software"
Jonas Maebe

The sentence you quoted did not mean more than it literally said: the fact that the software world is still innovative in the presence of software patents at best proves that software patents have not completely and utterly destroyed innovation in the software world (just like high child mortality has not completely decimated Africa's population — although for clarity's sake, I want to make it clear that I don't consider both cases morally or otherwise equivalent).

So all I was saying is that it's not a particularly convincing argument in favour of software patents.
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http://intensedebate.com/people/Natanael_L Natanael_L

Lengthy posts are GOOD!
Too bad you can't give more details.

I can't understand how anybody could promote patents for any other reason than being misled about them or as a patent troll (I dare to include the patent laywers here as well).
http://intensedebate.com/people/Natanael_L Natanael_L

If only there was enough people that had the time and education to be able to review al those patent applications…
http://intensedebate.com/people/Natanael_L Natanael_L

As far as I know, the GPL and a few other license has patent clauses.

I know a case in the US (rail raod related, you've might have heard about it) where a software develoåer were sued over a patent.

They found out that the patentee had been using that software, and since it was covered by the GPL, it effectively meant that he had approved of the patent clause, meaning that anybody could use it since the license says that to use GPL software that your patents cover, you must license out your patent for free according to the GPL's terms.
http://intensedebate.com/people/Natanael_L Natanael_L

In reality, the patents don't disclose anything, they are almost always vague descriptions of a concept.
The RSA patent application might have made sense (included algorithms, etc), but that alone don't prove that software patents are good.

And another problem is that to figure out a better method based on that patent, you have to to a bunch of research that by itself could get you sued.
In reality, the publication of patents are worthless until it's last year before expiration.

"Either way, those patents did very little, if anything, to enable e-commerce."
"The evidence completely disagrees. Public key crypto is still widely used in Internet commerce. Go read up on SSL, HTTPS, etc."
I'd say that the RSA patent did nothing new. The fact that the algorithm is used today, after the patents expiration, doesn't mean that the patent did anything good.
And who says RSA was the first public key crypto? (Probably it was the first usable one, though)
http://intensedebate.com/people/Natanael_L Natanael_L

The public key crypto development was funded by universities. Of course they would have done so without patents.
Or are there patents on the Higgs boson math that I don't know about? Or the quantum theory? Theory of relativity?
No, it's all public. And they've choosen to make it public for the advancement of science and for the good of the public.

RSA was just patented by the people who was the last ones in the line to get it working.

Better schemes can only be developed if the patents make sense. And no sane person would use crypto that havn't been audited anyway. I also dare to say that the publication of patents don't have any value until the last year before their expiration anyway.

"The evidence completely disagrees. Public key crypto is still widely used in Internet commerce. Go read up on SSL, HTTPS, etc. "
Can you prove that was because of the patents – or was it because of their expiration?
(I guess you know they aren't valid today, and I guess you also know at what rate the use of the crypto have been increasing…)
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