A hopefully useful thought on software patents
I had always had some sort of intuited judgment regarding software patents, and my judgement was that they were wrong. That they were unjustifiably granted. But during an argument about this with a co-worker, I couldn't quite articulate a compelling argument as to why. They just were. I had trotted out a lot of the sorts of arguments that we all make, but they just didn't feel compelling.
I thought about it and slowly realized that I actually didn't have a problem with software patents, per se. It was that software patents were an especially egregious example of an underlying problem I had with patents in general. The problem was this:
We, as a society, pay the same price for different goods regardless of value.
The price we pay to incentivize an inventor to disclose their invention is with decades of protection from competition. For a utility patent, that's 20 years from the date of the patent grant. And we always pay the same price, regardless of the underlying value of the invention to our society. So whether you invent a new method of swinging in a swing or a new drug to fight cancer, we pay the same price to know how it works.
And I think that's one of the key perspectives that often gets overlooked. We are paying for knowledge. The inventor is supposed to have figured something out that even skilled practitioners in the art hadn't thought of. We are paying for the secret sauce, so to speak. I think sofware "inventions", for many of us skilled in the art, seem so obviously non-insightful that we can't believe society has paid for such "knowledge" with a patent. Many of us realize that we don't even need to read most software patents to learn how to do what it explains. We're paying for "I was here first", rather than "I finally solved the problem no one else could". Yet we pay the same price regardless. That's why the Defend Innovation site wants to limit software patent terms to 5 years. Patent protection should be proportional to the value of the invention. But I believe that should be true for any invention.
That's when I realized I wasn't against software patents at all. I was against paying the same price for items of different value. Given that revelation (in my own mind), I would actually be fine with a software patent if its contents were the only way to learn how to do something that was exceedingly difficult (many had tried, all had failed). But that applies to all patents (at least utility). So I wouldn't agree with the 5 year term for software, what I preferred was for all patent terms to reflect their value. Most software patents would probably not get a patent term long enough to cover the application process (1-click). Some might deserve 30 years of protection (general AI, etc). The same goes for non-software. It's conceivable that a patent might actually be worth 50 years of protection (a small battery that weighed an ounce but provided 100 years of current, etc).
For me, then, this was really the essense of, and the strongest form of, the argument against software patents. Since I was so familiar with software it was much more obvious that we had all over paid.
Thoughts?
7 comments
[ 3.0 ms ] story [ 31.4 ms ] threadAnother thought. There are (at least) two ways for society to subsidize innovation: patents and grants. Patents subsidize after the fact, by legislating a temporary monopoly. Grants subsidize before the fact, by paying some of the costs of innovating. Both of these systems have problems, but the grant system at least puts some consideration into the value of the benefit to be provided.
For instance, suppose I invent a new battery, but claim that even though it's the same size and weight as a standard 9V battery, it can last for 40 years at full load. The company making the application could suggest a desired length of time for the patent in months. The USPTO then puts the following on their site:
"A patent has been applied for on technology to produce 9V batteries of the standard dimensions and weight as existing batteries, but with a mean lifetime of 40 years. The expected cost to produce one such battery at scale is $1.25. The applicant is asking for 480 months (40 yrs) of protection to exclusively sell and/or license this technology.
Do you agree to these terms?"
Then the public could vote yes or no. Obviously verification of voters of some sort to prevent fraud, etc, would be needed, but the principle is that the company can set an "asking price" to reveal the technology and we could vote on whether we agree to pay. We'd need a sufficient number of votes before a result would be binding, and the company to could decide to reduce their terms to get more votes (not increase).
That's just a possible mechanism, lot's of things to tweak, but I don't think it's impossible or even impractical in reality to do such a thing (or at least something in the spirit).
The grants are useful as well. I think things like the X Prize are a good potential solution to some of the innovation dilemmas we face now with patents. We could target what the problems we most want solved by offering $$$$ to the person/group who comes up with a solution. If the dollars are large enough, then the public could even ask/expect to receive all the rights to exploit the solution should one be found/submitted. And you are right, the dollars allocated to the incentive (grant or prize) would directly reflect the value society places on it (hopefully).
The other way, it's all about lawyers and their hourly fees and innovation- and in the end business itself- suffers, except of course for the business of lawyering.
Lawyers are a virus who have injected themselves into an industry and a sphere of human activity they have no place in and was doing astonishingly well both in terms of innovation and economic activity before they showed up/
My main issue is that we should examine the why of why we don't like software patents, generalize from it and re-apply that to patents in general. My point is that we'd find it's not software patents in particular that are the problem, it's the fact that we as as society overpay with too much protection for something of so little value. Since we end up paying years of protection for items of so little worth, it stymies innovation in a great many instances, and diverts capital away from innovation and instead to the courts.
And yes, I too could rant for days about the lawyers ;^).
Most people against patents have a problem with 3). But, what if we figured out a way to standardize 2)... i.e. rather than preventing everyone else from using the patent, we figured out a standard system to proportionally reward the inventor with the value created by the application of the invention. Say 10% of all money made by application of patent (via direct/indirect monetization).
In such a system, the original intent behind patents of rewarding the inventor is maintained, society as a whole is able to benefit from the invention, and pace of innovation is accelerated.