Patents

Posts about software patents. And by “about”, I mean “opposed to”.

I know it’s a category mistake to feel human emotions toward a corporate entity, but I can’t help feeling sympathy for Google when I see articles like this (which come out all the time — this one just happens to be today’s example):

“A new patent could position Google as the world’s dominant identity platform”

But before I start ranting, let me fact check:

Does anyone know of any instance of Google pre-emptively filing a patent infringement claim or threatening the same? That is, not as a response to an incoming patent threat, but as a first-strike move intended to monopolize a market by blocking out competitors? Responses in comments, please.

If it’s happened, I haven’t heard about it. As far as I can tell, Google collects its enormous piles of patents simply as a defensive measure: if everyone around you is armed to the teeth (and some of them, like Apple and Oracle, actually use their weapons on a regular basis), then you don’t really have a choice about whether to arm yourself. The question is just how much budget and preparedness you’re going to devote to it, as opposed to conducting your actual business.

So when I see articles like the above, saying stuff like this…

Earlier this week Google was granted a US patent that could position the company as the world’s dominant identity platform with the potential to control hundreds of millions of personal identities. The implications – both beneficial and threatening – are significant.

Superficially, the concept behind the patent appears benign enough. The patented system has the ability to create different pseudonymous identities for users, meaning that users could decide who gets to see their real identity as opposed to a pseudonym, but with each identity secretly linked and thus carrying an equal degree of integrity. That means a person could establish a more flexible and trusted relationship with other users without disclosing a real world identity. …

…I wonder if I’m missing something, or if the author just hasn’t been watching the company’s actual behavior very closely.

Corporate culture matters. As far as I can tell, starting from the people at the top, Google is fundamentally uncomfortable with government-granted monopolies on technology and business methods. Maybe they just feel that using patents for supply manipulation is short-term thinking, or maybe they feel it’s wrong, but either way, I do not recall having seen Google use those monopolies to establish or maintain market dominance (again, corrections welcome). Their large patent portfolio seems to be held mainly for defenses against incoming patent threats… which is the case for many companies, and just demonstrates the insanity of the system.

Meanwhile, the rapacious climate encouraged by the companies that do use their patent portfolios aggressively causes everyone to be tainted with suspicion, leading to articles like the above.

Disclaimer: I worked at Google briefly in 2006, then left amicably to pursue other ambitions. I’m still on good terms with colleagues from that time, but I have no financial interest in the company.

This notice just went up at the Software Freedom Law Center…

Could it have anything to do with Microsoft filing suit against TomTom I mean Microsoft filing suit against the free world?

They don’t say, but the timing certainly is interesting:

SFLC Seeks Patent Attorney dedicated to Software Freedom

The Software Freedom Law Center, a New York based not-for-profit legal services organization that provides legal representation and other law-related services to protect and advance Free and Open Source Software (FOSS), seeks a registered patent attorney passionate about defending software freedom.

The Patent Attorney will principally be assigned to patent related legal matters, including counseling, opinion work, drafting of requests for reexamination and possibly litigation support. The Patent Attorney will also be asked to assist with other SFLC legal matters involving copyright, licensing, trademark and corporate issues. In addition, the Patent Attorney will be expected to publish writings and make public presentations on topics relating to patent law’s impact on FOSS.

In addition to being registered to practice before the USPTO, candidates should have a minimum of two years patent law experience, a software or computer science related technical background, and familiarity with FOSS. Ideal candidates will already be a competent and regular user of a Free Software operating system.

Salary is comparable to public sector legal positions in New York and not commensurate with private practice. An excellent benefits package is provided. To apply, please submit a resume in a free data format (such as OpenOffice) to attorneyposition@softwarefreedom.org. SFLC is an equal opportunity employer.

If you know a patent attorney who wants to work with a great bunch of people on protecting the free software world, please tell them about this opening!

[frdm] Support SFLC

Imagine you run a non-profit organization that does a lot of good, but you’re not allowed to tell anyone about much of it.

That’s the bind the Software Freedom Law Center finds itself in all the time. They do a lot of their work behind the scenes, heading off Bad Things before the programming public ever finds out just how Bad those Things are. Unfortunately, many of these settlements have to be done under non-disclosure agreements that don’t allow the SFLC bragging rights on their (still impressively copious nonetheless) news page.

If you’re an open source software programmer, you may well be the beneficiary of their work without knowing it. The fact that your project or its users haven’t been sued by some patent troll may be happy coincidence, or it may be that various backroom negotiations, threats of legal challenges, re-examination requests, et cetera by the SFLC and its allies have kept you safe.

The SFLC is doing the things the rest of us don’t have the time or expertise to do. They’re not doing it to get rich (and just in case it wasn’t clear, they’re not getting rich). They’re doing it because they care about freedom.

They just can’t always talk about it.

So, please: donate. I just did.

[frdm] Support SFLC

I just sent this letter to New Scientist magazine; no idea if they’ll print it or not, so I’m posting it here too, as several people have recently expressed interest in this idea:

James Love’s proposal for cash prizes to replace today’s patent monopolies (“Fair prices, fair profit”, page 24, Nov. 10-16 New Scientist Special Issue) would be a welcome improvement on the current patent system. But there may be an even better solution: sliding registration fees with a public buyout option.

Under this system, the patent applicant names a monetary value for the patent at the time of registration. They may pick any value at all — ten dollars or ten billion — but the registration fee will be a percentage of that value, so there is an incentive not to declare too high. Each year upon renewing the registration, the patent owner has a chance to adjust the declared value up or down, and the renewal fee adjusts accordingly.

Now comes the key: since the declared value of the patent is a matter of public record, any party can liberate the patent into the “public domain” (to use the language of copyright law, whence this proposal originally came) by paying the patent holder that amount, in a mandatory transaction. The registered owner must accept, and, having chosen the value in the first place, cannot claim to have received less than the patent’s worth.

This system preserves all the market dynamics that defenders of the current patent system rhapsodize about: there is still an open market in patents, and a patent can sell for more or less than its registered value (since a purchaser may be interested in retaining the monopoly, rather than in liberating). At the same time, the public always has a clear path by which to liberate a given patent, and at a speed that matches the urgency of the public’s need.

By doing away with the need for a national board to decide who gets cash reimbursements, and depending instead on free market dynamics, the proportional registration system may be more acceptable to those who worry about the political implications of having governments decide what rewards to give to what drug companies.

-Karl Fogel

I’m not convinced that any patent system at all is necessary, by the way, but the issues with patents are a bit trickier than with copyrights.

Patents are partly a means of preventing people from keeping secrets: if someone invents a new artificial heart valve, we want them to publish about it in great detail, and granting them a temporary monopoly as a reward for doing so is one way to ensure this happens. On the other hand, medicine and medical devices are almost always the example the patent industry uses when it wants to scare us into imagining a world devoid of innovation, so it’s appropriate to note that there’s a whole separate secrecy-prevention mechanism in place for that category of inventions: the medical approval process (in the U.S. this is run by the FDA, for example). You can’t get your drug or heart valve approved anyway without revealing the technical specs, so the anti-secrecy argument is rather weak in the very case of the poster-child industry for the pro-patent lobby, as it happens.

While I’d be very happy to see the proportional registration system adopted for either patents or copyrights, the real purpose of the proposal is to show that even if you accept the argument that monopoly-based market dynamics are necessary, there’s still a better way to do it than the way we do it now. I’d really like to see on what grounds the pro-monopoly lobby would argue against the proposal… They often talk about how we must “balance” the needs of the creators against the needs of the public (a false choice if ever there were one), but if balance is the desired goal, what could be more balanced than a system where the public gets a buyout option based on the owner-determined market value?

A student named Augusto Pedroza posted a comment here recently, a comment containing such a large and complex question that I’ve decided to use this separate blog entry to answer it.

Augusto is a Google Summer of Code student, meaning he’s working in an open source software project this summer. He says that as he reads more and more about patents, copyright, and open source, some questions arise in his mind. I think I know this feeling. After years of working in open source software, I too started asking myself “Hmmm, this open, freedom-based method of development seems to be working out pretty well for software — what else could it work well for?”

The answer, I think, is “everything”. But that’s just an assertion, not an argument. Augusto’s going to need some more details to back it up. Below are his questions, with my responses interleaved.

I’ve been following [QuestionCopyright.org] too. I already read this one: The Promise of a Post-Copyright World. The more I read things about patents, copyright, open source, free source, few questions arise. Maybe you could share some of your points and perhaps indicate some articles that you might find interesting.

My first question is: In what extent are patents, copyright important and necessary? Is it fair that a company or a person who invests precious hours of his own time make his work freely available? or even worse, his new idea might give to well established companies a way to explore a new idea and make a lot of money?. In the other hand is it fair that a company that finds a cure for cancer may be able to patent that to make money while thousands of people suffer and die from this sickness?. I guess in matters of software my question really is, what should be allowed to be patented in order to avoid this huge mess caused by a current poor patent system?

Thanks for taking the time to ask. I think there are actually several questions going on at once here, and before separating them out, I’d like to gently challenge some assumptions you might hold about freedom and about what is “fair”. Take this question:

“Is it fair that a company or a person who invests precious hours of his own time make his work freely available? or even worse, his new idea might give to well established companies a way to explore a new idea and make a lot of money?”

First, when a person releases a work to roam free in the world, the person always gets a benefit from that work: the benefit that comes from being the creator of something people enjoy or find useful. This isn’t just some abstract feeling. I’ve written two books, and in neither case was the monetary reward significant enough to be a motivating factor (in fact, I made a lot less than U.S. minimum wage for the hours I worked). But the books were still very much worth it. They have helped me in concrete ways: I’ve gotten jobs, speaking engagements, conference invitations, etc based on them. Only accurate attribution is needed for this effect to take place, and attribution is unrelated to copy restrictions. Actually, for attribution purposes, it’s much better for the works to be allowed to flow freely on the Internet.

Second, be careful not to confuse “free” in the sense of “everyone has the freedom to copy and make derivatives of the work” with “free” in the sense of “doesn’t cost money”. Most artists don’t earn much money from their work anyway, but those who do mostly earn it from grants, commissions and performance revenues, not from copyright royalties. Even for non-performing, non-grant-seeking artists, there are other ways to fund their work that don’t interfere with others’ freedoms (for example, see the Threshold Pledge system).

It’s true that some artists do earn significant amounts from copyright revenues. But don’t view that as a matter of “fairness” or “rights” — view it as one possible business model out of many. There are other ways artists can and do make money. For example, in the U.S. we don’t do very much taxpayer funding of art; other countries do. Whether or not to fund art through taxes is a decision every taxation group (i.e., nation) must make for themselves. But it’s not a question of fairness, it’s just a policy question.

And what I’m saying is that copyright itself is also just a policy question. Copyright enables a particular business model: a model based on centralized distribution with restrictions on copying. That business model is inherently incompatible with any business model (such as being a DJ) that relies on unrestricted abundance. So we must decide, as a matter of policy, whether we want freedom and abundance, or control and artificial scarcity.

I’m deliberately phrasing that in a slanted way, as an antidote to the bias of asking about “fairness”. Since we already know that artists benefit just from being known as the authors of their works, your original question, I think, can be translated to this: “Is it fair for other people to reap benefits from an artists’ work that the artist doesn’t reap herself? What if those other people even reap more benefit than the artist?”

When you look at it in that light, some interesting answers emerge. For example, do we treat other professions the same way? No. As Justice Stephen Breyer (of the U.S. Supreme Court) has pointed out regarding copyright:

…few workers receive salaries that approach the total value of what they produce. The social value of the work performed by the man who invents the supermarket, the man who clears a swamp, the academic scientist, or the schoolteacher may be much greater than his pay. Moreover, workers in competitive industries make products that sell at prices well below what many of their buyers would be willing to pay for them. We do not feel that owners, managers, or workers in such industries are for this reason morally entitled to higher wages. Indeed, when a worker without competition – perhaps because he is the only doctor in the area, or the only engineer capable of building a certain bridge – could charge a price close to the total value of his services to the buyer, we normally encourage competition, which will force him to charge less.

There is nothing inherently immoral in the fact that many workers are paid less than the social value of what they produce, for much of the excess of social value over persuasion cost is transferred to the consumer in the form of lower prices. It is not apparent that the producer has any stronger claim to the surplus than the consumer or that the author’s claim is any strong than that of other workers. In fact, why is the author’s moral claim to be paid more than his persuasion cost any stronger than the claim of others also responsible for producing his book: the publisher, the printer, the bookseller, and those responsible for the literature in the past that inspired him?

In sum, simply to speak of the “fruits of one’s labor” does not show that the author should be paid more than his persuasion cost or how much more he should be paid. In particular, it does not demonstrate that the amount he receives under existing copyright law is any more “just” than what he would receive without copyright protection or under a different copyright system.

(S. Breyer. “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs” (1970) 84 Harvard Law Review 281.)

[My thanks to Jacob Tummon, in whose article The Case for the Elimination of Copyright I first encountered that wonderful quote from Breyer.]

It’s interesting that we do not ask this “fairness” question about, say, road workers or doctors. Instead, we observe that they are willing to do what they do for the wages they receive. In some cases we may feel those wages are too low, but this feeling is not dependent on the amount of benefit someone else reaps from the worker’s product — it’s dependent just on the wage itself.

So, then, why is it “worse” when someone’s “new idea might give to well established companies a way to explore a new idea and make a lot of money”? Do you consider it “worse” when a trucking company makes a lot of money using the roads that your tax money built? 🙂 Is the originator of an idea worse off because someone else, somewhere, is successfully exploiting that idea to make money?

I think we should treat creativity the way we treat most other activities that bring varied benefits to different people: by not assuming that one person’s benefit is automatically another’s loss. Life is not a zero-sum game, and neither is the world economy.

Anyway, most creators wouldn’t notice much difference, because they don’t earn a lot from copyright. And it’s not like there would be some shortage of creativity in the world: we’ve had a surplus for a long time now, and it would only be increased by (finally, again) allowing frictionless, unauthorized derivative works, the way we did for most of human history. There’s nothing to be afraid of; the free software / open source movement demonstrates this. The water’s fine,
come on in!

Second question: In your opinion, is there a perfect time to open a source code in order to obtain success as well as be competitive? Had google opened their ideas and source code in the beginning of its existence it would not have created such an empire that is able so sponsor great programs as this one (gsoc). Is it possible to measure positive points and negative points if Microsoft for example, decides to open all their code right now?

I am a big fan of open source development and I have been trying to understand these points in order to show how companies fully based on the proprietary model are able to see their companies as part of a community. I want to show them the risks, the advantages and of course this new exciting way of producing software.

Whose point of view is this question being asked from? 🙂

First of all, I agree that it is probably somewhat to Google’s advantage not to open up their core code — although the advantage is not that great. I suspect most of their market edge comes from their infrastructure and their processes for supporting it. Even if they did open up their code, most competitors couldn’t make much use of it, although perhaps those who want to game their Google rankings could derive some advantage, and spammers could better fight Google’s spam filters!

In general, though, I’m suspicious of chains of logic that say “If Foo Corporation hadn’t done ABC, then they wouldn’t have made so much money, and then they couldn’t support wonderful programs like XYZ.” The same reasoning applies no matter what ABC is — it could be illegal monopolistic practices, arms dealing, whatever.

So when you measure the “positive points and negative points” of someone opening their code, you have to ask: “positive” and “negative” for whom? For the company? For its customers? For society as a whole?

By the way, I’m not making the argument that service providers like Google (and, to some degree, Microsoft) should be forced to open up their code. I do think certain applications should be open source by law (voting software used in public elections, for example, and software that controls medical devices). But the boundary between copyright and trade secret law starts to get very fuzzy, especially when dealing with companies whose software runs on their own servers. So I don’t think Google should be required to open their code. I’m just pointing out that your question, at least the way you asked it, contains an assumption that competitiveness (for a given company) is inherently good, that it should be a primary goal for society.

I don’t think that’s a good assumption. There are no sides here; we don’t have to “balance” the needs of all the “stakeholders” (to use language that economics journalists are so fond of). We just have to figure out what’s best for society, and that’s the only criterion we should consider. Private property itself exists only because we have decided it’s good for society — and note that we have the doctrine of eminent domain, for situations where private property interferes with the public good. (You might take a look at the article Proportional Registration for Copyrights, to see what a system based on these assumptions could look like.)

Now, I know you were partly asking about arguments that for-profit business would be receptive to. There is no general answer to that. You just have to look at each situation and see. Sure, I could write a separate blog entry about the business case for freedom, but I wanted to stick to the social case here, as I think it’s a more important argument. There is no need to worry about business: clearly, for-profit activities can flourish in a world of unrestricted abundance of works of the mind. If someone claim’s they can’t, I’d like to hear why that means we should favor the profits rather than the freedoms! But in the end, it’s a false choice, because there is no conflict between freedom and economic prosperity. There is a conflict between freedom and certain business models.

I hope that helps answer your questions,

-Karl

P.S. Most of these arguments apply to patents too, but not all of them. Patents and copyrights differ in some important ways. Regarding software patents, and perhaps other kinds as well, this post and this post offer some methods by which one can tell whether a given patent regime is useful to society or not.

Microsoft recently claimed that open source code (in particular the Linux kernel) violates 235 of Microsoft’s patents. It’s not clear they actually intend to sue anyone for infringement, it may instead be some kind of bizarre publicity ploy. But there’s a great quote from Microsoft’s licensing chief, Horacio Gutierrez:

This is not a case of some accidental, unknowing infringement… There is an overwhelming number of patents being infringed.”

Get the implication? There are so many patents being infringed here, those open source developers couldn’t possibly have done it by accident! It’s just too many!

Which is the opposite of the truth. It’s far more likely that, if there are any infringements, they’re all accidental. Independent reinvention is the norm in software, especially given that the Patent Office frequently grants software patents for techniques which are either obvious or for which there is prior art available. (The Patent Office doesn’t do this intentionally, it’s just that it’s hard for a patent examiner to be skilled enough in all the varieties of programming to know what’s obvious in a given subfield, and also hard to find the right examples of prior art when there’s such an ocean of code out there to wade through.)

Assuming Gutierrez meant his statement sincerely, it reveals a lack of knowledge hard to believe in a high executive at a software company. Can he really be ignorant of the most basic realities of software development? I mean, it’s not like programmers sit around reading patents all day; in fact most programmers go out of their way to avoid looking at patents. Thus, infringements are almost always accidental. At the very least, a tally of 235 (alleged) violations would in no way imply that a single one of those violations were deliberate.

In fact, there may be far fewer violations than that, possibly even zero. For one thing, Microsoft has so far refused to name the specific patents or the infringing code, so the whole charge is FUD for now. For another, even if they do name a specific patent, and it matches (“reads on”, in patent jargon) the program code in question, the patent may still be re-examined in response to a challenge, or invalidated in court.

Anyway, my point isn’t about the degree of danger to free software (though fortunately that appears to be small). It’s about the fact that a Microsoft executive would assert, apparently with a straight face, that some of the infringements must be intentional simply because 235 patents are alleged to be violated. That is laughable.

(By the way, I found Gutierrez’s quote here, but you can probably find it many other places too, just do search://microsoft linux patent gutierrez/.)

I’ve written elsewhere about how software patents harm software development. This article is about how there’s very little corresponding benefit to justify that harm.

Ostensibly, our patent system is supposed to stimulate innovation and progress, by granting those who come up with a genuinely new and useful invention a temporary monopoly on that invention, as long as the inventor describes it by publishing a description in the government’s public registry of patents. (Already we’re on shaky ground, because this isn’t actually how the modern patent system came to be, but let’s leave aside the history for a moment — interesting and unexpected as it may be — and concentrate just on the present-day realities of software patents.)

The first sign that there’s something wrong with software patents is that (as any patent attorney working in software can tell you) they are overwhelmingly collected as a defense against incoming patent infringment suits. Most companies don’t intend to collect royalties on their software patents, they just keep the patents around in case some other company decides to bring a patent infringement suit, at which point the target of the suit goes digging in their patent portfolio and comes out with some patents that the plaintiff is probably violating — at which point the two sides sit down, work out a cross-licensing deal whereby each gets the rights to the others’ patents, and neither has to worry about it again. It’s a classic arms race situation: in a world where everyone is armed to the teeth, everyone must be armed to the teeth. Except, of course, that small players can’t afford the overhead of filing patents and keeping patent attorneys on staff, and are therefore vulnerable to infringement suits that they cannot defend against, regardless of the suits’ merits.

Another sign the system is broken is that filing software patents is almost always a byproduct of normal software development work, rather than the intended goal of research projects. In other words, programmers are solving problems in new and useful ways just in the normal course of their work. Typically, their employers instruct them to say if they’ve done anything that might be patentable, so the company can file for the patent. (I’ve received such instructions myself, as have most programmers I know.) So the innovation precedes the intent to patent, and would have happened anyway without the patent, since it was needed to do whatever the programmer was trying to do in the first place.

“Ah”, some would say, “but that’s missing the point. The patent still does society some good, because it forces the programmers to publicly describe their solution, so we can all benefit from it. Without the requirement to publish, the secret trick would remain hidden in their private source code, where others cannot learn from it.”

That argument would make sense if programmers ever used the patent office as a research aid, but in fact, they don’t. I’ve never heard of a programmer turning to filed patents to get help solving a technical problem. (I once made this assertion in the company of another programmer, who said he had heard of someone doing this, but when pressed, he thought about it more and realized the person was actually just examining patents for competitive analysis: he was trying to get news on what his competition was up to, not looking for information on solving technical problems.)

Even if filed patents did contain interesting technical information, which for the most part they don’t, they’d still be a pretty cumbersome way to find out that information, because patents are written in a special language designed for making claims that are defendable in court, not for communicating technical details clearly. Companies naturally want their claims to be as broad as possible, while still being defensible. But these goals are orthogonal to, and often opposed to, the simplification and reduction that are the heart of technical clarity. Learning a programming technique by reading a patent would be like learning to cook by reading municipal health inspection regulations: boring, painful, and in all likelihood unsuccessful.

But as I said, programmers rarely read software patents to learn from them anyway. The vast majority of the time, when they’re reading software patents, they’re doing it to determine whether they or someone else might be infringing. Don’t take my word for it — go ask a programmer about their actual experiences with software patents. You’ll find they’re either filing patents on work they were doing anyway, or spending time analyzing patents (solely to determine infringement, not to learn something new in their art), time they would almost certainly rather spend doing just about anything else.

Are you ready for the final irony?

Most programmers are instructed to consciously avoid looking at patents at all. This is because when you knowingly infringe on a patent, you are liable for triple damages as compared to accidental infringement. I don’t know what legislators came up with that doctrine, but what on earth were they thinking? We now have the paradox of a system whose supposed purpose is to spread knowledge, yet which those capable of using take pains to avoid, for fear of increased legal liability.

To summarize:

  • Software patents are mainly used as a defense against other software patents — a zero-sum arms race.
  • Filing software patents is generally a byproduct of work the programmers would do anyway, that is, the acquisition of the patent is not a motivating factor in the development of the new technique, it is merely a result.
  • Programmers do not use the patent office as a research tool, even though that was supposed to be part of the point.
  • Patents are written in a special style which is antagonistic to communicating software techniques clearly anyway.
  • Due to the triple-damages rule, programmers must consciously avoid looking at other software patents whenever possible.

I’m mostly leaving aside the issue of patent duration here. While it’s true that the length of time a software patent lasts is ridiculous (20 years from the earliest claimed filing date, in the U.S., for all patents, not just software), the term length is not in itself a philosophical objection. Although the harm of software patents would be greatly reduced if the term length were only, say, 3 years instead of 20, that would still do nothing to address the other concerns. No matter what the term length, we just don’t need software patents. If the purpose of patents is to stimulate innovation (a debatable goal in the first place), they are having the opposite effect in software: programmers are forced to avoid using the best tool for the job, for fear of infringing on a patent, and are forced to avoid building on each others’ work, for fear of triple damages. And even granting that innovation were a goal worth sacrificing freedom for, there would be no need to artificially stimulate innovation in software, because tremendous innovation already happens in the natural course of things.