jducoeur

I occasionally rant about the way the Patent system devastates the software industry, and that we'd be better off without it. That sometimes gets countered by folks parroting the usual arguments in favor of patents, that have been used for hundreds of years.

Which is why this article illustrates why I love The Economist so. It's a fairly long and in-depth look at patents, asking the simple question, "Are they worth it?" The information they adduce is damning -- the evidence is *extremely* weak that patents do much good at all, and it's unambiguously clear that they suck tons of money out of the rest of the economy, skewing industries along the way. Even the usual example that people cite as requiring patents -- the pharmaceutical industry -- turns out to be a strikingly weak argument when you compare the amount of excess profit Big Pharma pulls in compared to how much they actually spend on research; the article argues, compellingly, that we'd be far better off removing patents and using some of the colossal savings (possibly hundreds of billions of dollars) to expand government-sponsored research instead.

It's not short, but well worth reading: this is one of the most broken aspects of the law, which blights the software industry and is a significant component of why healthcare is so insanely expensive. It's well beyond time to do something about it...

I was surprised but happy when I got a forwarded copy of this news alert from the Wall Street Journal the other day:

The Supreme Court ruled that two inventors' patent of a method of hedging weather-related risk in energy prices can't be granted. The high court unanimously agreed with a lower-court ruling that said a process is eligible for a patent only if it is "tied to a particular machine or apparatus'' or if it "transforms a particular article into a different state or thing.''

The happiness was muted, though, when I read what actually transpired. Suffice it to say, this abstract is almost precisely wrong, or at least fabulously misleading: while the Court did shoot down the Bilski patent (as hoped), it did so on deliberately narrow grounds, and explicitly did *not* support the lower-court ruling. Indeed, the ruling was pretty disappointing for those of us who would like to see the software-patent regime simply scrapped.

I'm normally inclined to assume incompetence rather than malice, but I have to say that my suspicions about the WSJ have been growing lately. Ever since it got bought by Rupert "I'm not evil, I'm just a businessman" Murdoch, I've been noticing the slow trend towards it becoming a mouthpiece for his political views. So despite myself, I'm acidly looking to see if there is an agenda -- a Fox-News style reason to try to scare people into pushing for more extreme positions. Anyone have a reason to believe there is one?

Microsoft has apparently decided to reassert its position as most-evil-company, against the recent competition from Apple -- according to this report from All About Microsoft, they've launched a broad patent-infringement suit against Salesforce. The particularly evil part is that most of the patents have nothing to do with CRM (which is what they're really competing on); instead, they mostly sound like the sort of insanely-broad and stupid patents that lead me to the opinion that software patents should just be banned. Some listed examples include things like:

“system and method for providing and displaying a web page having an embedded menu”

“method and system for stacking toolbars in a computer display”

“aggregation of system settings into objects”

In other words, they've apparently got patents on a lot of pretty basic everyday concepts, and have decided to use them as competitive weapons. I don't know whether the patents are legitimate or not (I certainly hope not), but regardless, it just drives home how abusive and anti-competitive the whole patent regime is...

Thanks to laurion for pointing me at John Gruber's excellent article about patents, and the Apple / HTC case in particular. It's a little long, but well worth the read: it is a very measured examination of the concept of software patents, which essentially comes to the conclusion that, while software patents are legitimate in principle, the majority of them are for the wrong thing -- patents on relatively vague ideas, not really on novel and innovative implementations as they should be.

He then goes over to the Apple vs. HTC smartphone case, and makes some of the same points I did last week, but also points out that this whole thing doesn't smell like a legal dispute, but like a personal one: that Steve Jobs appears to be personally aggrieved that Apple's design concepts are being taken up by other companies. Frankly, I think he's probably right: this patent suit violates the industry norm of patent detente, so one suspects there has to be a reason for that. I'd guess that Jobs is taking a lot of (justifiable) pride in Apple's design skill, and is lashing out at the companies that have built off of it.

Which on the one hand is understandable; but on the other, is the *rankest* hypocrisy I've seen in some time. Those of us who have been around a while remember what turned Apple from a hobbyist's company into a powerhouse -- the introduction of the Macintosh, most of whose ideas were directly ripped off from Xerox. Yes, Apple put it all together well, and did a great job of marketing it, but let's be clear: most of what was regarded as innovative in the Mac was stuff that Xerox PARC had been cooking up over the previous decade, and sharing pretty freely. (This is why many of us snorted when Apple got huffy about the introduction of Windows: most of what they were complaining about, they hadn't invented in the first place.)

All of which just strengthens my feeling that this move crosses my personal "evil" line, at least for the software industry. Apple appears to have forgotten their own roots as a company that took the great design ideas of others and built on them: now that they *are* the great design laboratory, they are trying to prevent just the kind of sharing that created them, and which helps the industry to thrive.

(Really, I want to see a parody ad, with The Apple Guy as a cranky old man, lashing out at the new kid in his yard...)

It's hard to be in the software business without having an opinion on software patents. Some folks like them, some don't (personally, I think they are the greatest blight on the industry), but they certainly have a considerable effect on things. There's a lot of pressure to reform the system.

If you have an interest in the topic, I commend this article in Ars Technica, talking about the new book "Patent Failure". I may have to pick up the book (which sounds a tad dense), but the article gives a fascinating overview of the high concepts there, including a concise and clear economic demonstration of just *how* broken the system is. (They demonstrate that the cost of litigating patents in most industries appears to greatly exceed the profits derived from those patents -- in other words, the system is a huge net negative for these industries.) They also talk about the fundamental problems of the patent system, especially the ambiguities that makes it difficult and expensive to work within.

The authors apparently take a deliberately cautious view -- they're advocating reform rather than my preferred approach of simply nuking software patents from space. But I appreciate at least the principle of careful reform, and it's good to see someone taking a hard look at the nuances of the problem...

I just now came across this blog entry, talking about the fact that the Supreme Court is weighing a patent case with serious ramifications today. Apparently, it's being used as a test case for the question of what is "obvious", and they're seriously examining whether the current standards for patents (which have led to the enormous slew of patents in the past couple of decades) are really appropriate.

Neat stuff, and terribly, terribly relevant to the tech industry. For all the concerns that it will cause some chaos (which are probably true), I dearly hope that they wrestle with the problem seriously enough to come up with a better standard. We'll see what happens...