If there?s a single issue aside from net neutrality that will profoundly affect the future of innovation, it?s software patents. As average people become increasingly dependent on the intangible algorithms that give life and purpose to the CPUs inside their various electronic tools, the debate over software patents brings into question the very nature of human ideas ? Can a configuration of numbers be owned? Or does innovation need to take physical form to be given legal substance?
While these questions wait to be answered, lawyers toil away to make sure that companies like Apple have concepts like multi-touch configurations and online application marketplaces sufficiently future-proofed, filing documents besieged with legal vagaries in an effort to assert ownership of as many of these equations as possible. Where do we now stand in this mess?
Patents = Transparency?
Last week, former Engadgeteer Nilay Patel wrote an editorial calling out common misconceptions regarding patent laws in the US. His refreshing but somewhat pedantic thesis extols the oft-unnoticed virtues of the patent system via thorough exploration of its laws. Through various citations, he maintains that patent laws actually encourage innovation by requiring companies, in exchange for their temporary idea monopolies, to ?publicly disclose some of the most advanced work ever done by some of the most creative and resourceful people in history.?
Citing Larry Page?s patent for Google?s PageRank algorithm, he writes:
Because getting a patent means accepting a time-limited monopoly on your invention, anyone will be able to use this specification to build their own search engine when the patent expires in 2018. In the meantime, you?re free to look at Google?s work and attempt to design around the specific claims in the patent. That?s an important way the patent system encourages innovation, actually: it forces inventors to build alternative ways to do things. You can bet Microsoft?s Bing team has spent hours studying the PageRank patent in an attempt to build something that works differently ? and hopefully better.
The achilles heel of his argument, however, is that Patel ? a writer and not an engineer, by no fault of his own ? does not take accurate survey of how practical or relevant these facts truly are to people like software developers. It?s true that any engineer can look up a patent, Timothy B. Lee writes on Forbes, but that doesn?t necessarily mean that doing so is constructive.
Lee:
?I?ve known and worked with a lot of computer programmers over the years in a lot of different parts of the software industry, and I?ve never met a computer programmer who finds patent filings a useful source of technical information. A typical patent is written in dense legalese. This style, combined with the tendency invent new terminology for standard concepts, makes searching the patent database almost impossible. Patents are often not released to the public until years after the original application, by which point the technologies described are often out of date. And most important, the typical patent has very few of the technical details a programmer would actually be interested in. Most importantly, the patent office doesn?t require the disclosure of source code.?
The transparency that Patel espouses, much like in his prior contrarian editorials on internet laws, seems a gross oversimplification; a spectator?s prognosis steeped perhaps in misplaced confidence that the system in practice is just as it is in print.
The Not-So-Great Equalizer
But let?s say for a moment that the information provided in a particular patent is understandable and useful to an engineer. Do the benefits of this insight for the engineer really put them on equal footing with a large company like Apple, which now has the benefits of a nebulous hegemony over a particular software feature? My educated guess would be ?probably not.? Perhaps the ?lazy conventional wisdom? that Patel cites at the beginning of his piece isn?t so ?lazy? after all. Perhaps it is grounded in actual experience with the patent system ? admittedly often muddied by poor reportage and a vocal minority ? that basically amounts to ?patents equals power.?
You can see this at work in Google?s recently revealed mission to acquire phone hardware giant Motorola. As The Economist points out, the proposed acquisition, which will be Google?s largest ever if it goes through, likely has less to do with market share and more to do with ? you guessed it ? acquiring more patents:
?The attraction for the internet giant is not the handset-maker?s 19,000 employees nor its 11% share of America?s smartphone market, but its portfolio of 17,000 patents, with another 7,500 in the pipeline. This will bolster Google?s puny arsenal of around 2,000 patents, hugely strengthening its position in current and future legal battles with its more heavily armed industry rivals.?
It?s assumed that these patents must be pretty effective at protecting Google?s presence in the mobile industry. Otherwise, why would they ? or any other company, for that matter ? even bother? Logic would dictate that if the patent system?s rules were as iron-clad and straightforward as Patel suggests, we wouldn?t be seeing companies like Samsung stumble through a legal minefield created by patent-crazy companies like Apple.
In recent years, however, the patent system has been stifling innovation rather than encouraging it. A study in 2008 found that American public companies? total profits from patents (excluding pharmaceuticals) in 1999 were about $4 billion?but that the associated litigation costs were $14 billion. Such costs are behind the Motorola bid: Google, previously sceptical about patents, is caught up in a tangle of lawsuits relating to smartphones and wants Motorola?s huge portfolio to strengthen its negotiating position.
But is buying up tons of patents such a great idea? Economist goes on to say that Google is naive in thinking that quantity translates to quality ? easily one of the most troubling ideas that plagues the patent system today, especially in the tech industry. What is it then that makes patents worthwhile?
It would seem that lawyers, the group of individuals mostly unmentioned in Patel?s argument, are the most pertinent X-factor in this equation. If anything, it?s their services that give patents their power, largely determining how many of these documents are written and interpreted. And as we all know, the luxury of having deep pockets tends to bend these distortions favorably. Google, to borrow from the previous example, employs around 25,000 lawyers worldwide at the time of this writing.
Meanwhile, the little guys coming under fire from patent claims, having little or no resources to defend themselves, are finding themselves at the mercy of broad patents, oftentimes owned by product-less, exploitative entities such as in the recent case of patent troll company Lodsys.
The Nature Of The BSD
Patel then goes on to assert that perhaps software, composed of naught but lines of code and processed by machines, isn?t ?just math? after all; that the border between a physical product and the intangible machinations of a computer program is ?fuzzy? and warrants scrutiny. To wit, a physical invention is just a collection of arranged atoms in the same way that a piece of software is a collection of arranged numbers.
?Every invention is ?just math? when it comes right down to it ? traditional mechanical inventions are really just the physical embodiments of specific algorithms. Consider the TurboTap long-necked draft beer nozzle, which was developed by a University of Wisconsin student named Matthew Younkle and granted US patent #7,040,359 ? it pours beer faster and with less foam because of its long shape and internal structure. (I?ve conducted extensive? testing.) Isn?t that just a clever application of fluid dynamics? Where do you draw the line between the math that enables the invention and the invention itself??
To which Lee responds:
?True, we have mathematical models that approximate the behavior of many physical systems, and in some cases (like quantum mechanics) it does so with extremely high precision. But a model of a system (even an extremely accurate one) is not the system itself. You can simulate a nozzle with a computer program, but loading fluid dynamics equations into your laptop won?t turn it into a nozzle. To create a nozzle, you need physical substances like steel and plastic. Hence, a nozzle isn?t math, and it?s eligible for patent protection. A web browser, spreadsheet, or video game is just math, and therefore it?s not (at least according to the Supreme Court?s precedents) eligible for patent protection.?
Conversely, in the open source software development community, all of this is a given. It?s never disputed that code is just math, and developers who build off each other?s work in this manner offer rapid improvement of software far beyond that of the kind bogged down by patents and litigation.
It becomes increasingly apparent that this facet of the issue is an existential one, and that people who actually develop software, the kind that deal in the abstract every day, seem more equipped to solve it. Unfortunately it?s a larger problem than that, one that requires much greater collaboration between those making stuff and those shaping its properties in the litigious realm.
One thing that Patel?s article correctly states is that if software is going to continue to be part of the patent system, we need to create an actual system for software patents. The obvious place to start, says Economist, is distinguishing different types of patents based on the nature and pacing of their respective industries. There is no reason why software, an essential player in the lightning-paced tech industry, should not be given its own set of rules for patents ? namely, a reduction in the time a patent holder can claim exclusivity on a certain software feature. That would mean that companies like Apple can?t write really good touchscreen software for smartphones and just sit on it for years while suing the pants off everyone else.
The more defined the area of software patents becomes, the less potential for abuse exists. And when the coast is clear, the more competitive entities will come out of the woodwork to strive for continual improvement, not the stunted growth model that dates back to the days before computers were essential tools in our daily functions.
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