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Comment by billmcneale | Hacker News Reader

First, you'd have to show that innovation is being blocked in America, considering that most software innovations come from there.

While in need of some tuning, IP laws seem to be working as advertised: you can't release a product that copies 90% of another product, you actually have to innovate.

Look at Android: they had to navigate around dozens of Apple patents and they still did fine and they have come up with an impressive set of innovations.

When plagiarizing is outlawed, you have no choice but innovate.

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"First, you'd have to show that innovation is being blocked in America, considering that most software innovations come from there."

I disagree. The relevant question is whether the benefit to society is greater or lesser than it could be from other laws. If someone is sued for a few million dollars from a patent troll who does nothing else for society with that patent, net loss. When something is brought to market that wouldn't have been without protection, net gain.

Patent laws at least in the software arena are very plausibly a net loss. The best thing about this metric is that you don't have to sit there and argue about whether "software innovation" is being blocked, which is something that will just involve people defining "blocked" in whatever way it takes to win their point. (Boring!) It's about net loss or gain.

> I disagree. The relevant question is whether the benefit to society is greater or lesser than it could be from other laws. If someone is sued for a few million dollars from a patent troll who does nothing else for society with that patent, net loss. When something is brought to market that wouldn't have been without protection, net gain. Patent laws at least in the software arena are very plausibly a net loss

How do you come to this conclusion?

As I showed, there is plenty of software innovation happening in the US every day. Occasionally, the process goes awry and we see futile lawsuits, but the "net positive", as you put it, is undoubtedly positive if America's leadership in software innovation is any indication.

Speaking of frivolous patent lawsuits, we do hear about some now and then, but when was last time that something truly outrageous was awarded to a patent troll? Outrageous patents get filed on a daily basis but they hardly ever survive in court, or they are resolved outside the courts in a settlement, usually indicating that both parties have "dirt" on each other and chose to settle instead of engaging in something that will end up as mutually assured destruction.

By all criteria, the system is working pretty well.

Having said that, I think the duration of software patents should be reduced.

The actual awards and even the actual settlements are the tiniest drop in the largest bucket. The true cost comes from defense costs, the preparations for lawsuit, insurance against lawsuits, and the opportunity costs of spending time engineering around worthless "one-clicks" that could have been spent productively.

"How do you come to this conclusion?"

How do you come to the opposite? It's not like there's an enormous repository of objective data we can just go run to and crunch numbers on with pre-agreed algorithms.

However, I would say that you're committing a logical error; we have a certain set of patent laws, we have software leadership, and you seem to conclude therefore there is a causative relationship. That's not logically sound.

What I see out there in the world is that very few people are creating software because they are incentivized by a patent system to do so. It's almost absurd to think that someone would be incentivized by a system guaranteed to get back to them a year after their application or so. Nor is the patent system successfully putting knowledge into the public domain; in order to fulfill the contract a patent is supposed to be offering one should be able to reconstruct the patent from the description, generally either trivial or impossible. They create software for other reasons. On the other hand, there's a lot of litigation out there for no real gain.

It's not hard to conclude the value of patents are negative in the software domain when almost all the entries on the ledger are negative, and the negative ones are also larger than the positive ones.

I'd also observe that I did not say the metric is benefit to the patenter, which I think you may have missed. I said benefit to society. This idea is written into the very Constitutional authorization for Congress to create laws regarding patents and copyright in the first place. So the idea that the relevant metric is benefit to society isn't obscure or something I made up, it's directly from the authorization granted to the government in the first place, I couldn't be any more mainstream.

"However, I would say that you're committing a logical error; we have a certain set of patent laws, we have software leadership, and you seem to conclude therefore there is a causative relationship. That's not logically sound."

No, I didn't go that far, but I certainly used this fact to place the burden of proof on people who claim that the "current software patent laws are broken".

"What I see out there in the world is that very few people are creating software because they are incentivized by a patent system to do so"

I see the exact opposite: what is the point in coming up with an innovative concept if anyone can steal it the day after you make it public and reuse it without any consequences?

I have a strong suspicion that we would be seeing a lot less start ups if such laws were not in effect.

"It's not hard to conclude the value of patents are negative"

It's obviously not hard, but it's also incorrect :-)

The innovations are happening despite ip restrictions. It has been historically shown that innovations increase after the ip restriction expire.

http://www.thefreemanonline.org/featured/do-patents-encourag...

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