throwawaykf05

Not to say there's no creativity there, there certainly is. But that creativity exists in the ideas and solutions used to solve technical problems, which is then the realm of patents.

Google tries to conflate these two issues. Programmers may find it reasonable because of course binary code seems equivalent to program code, the former being deterministically derived from the latter. But from a copyright perspective they are very different. Binaries enjoy copyright protection as they are "derived" from copyright-eligible software code, but Google is not accused of copying binary code here, rather textual APIs that they did not clean room reverse.

Unfortunately tech media and organizations like the EFF of course portray it differently because they have an agenda, and most people accept it without critical thought.

Patents go both ways. Studies that while patent thickets may discourage entry [1], this effect is limited, and smaller companies are more likely to enter the same markets (and succeed) if they have patents themselves [1, 2, 3, 4].

> Oracle gets to claim $9B for 37 methods in the Android code.

This has nothing to do patents and everything to do with copyright licenses like the GPL. And just to be pedantic, it's 37 whole packages. And without this, Google would have been rip off Sun's hard work of building a developer base for Java. "Free software" should not mean "freeloading".

> Apple gets to sue Samsung over icons, among other things.

And without those, as ridiculous as they are, Samsung would have gotten away with ripping off Apple wholesale.

> Being Open Source friendly isn't about releasing code under liberal licenses. It is about the commitment to software freedom.

False dichotomy: https://news.ycombinator.com/item?id=11583749

1. http://people.bu.edu/cockburn/cockburn_macgarvie_entry_and_p...

2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=510103

3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=989592

4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926204

I could just as easily say "free-riding off somebody else's ingenuity is fundamentally unfair".

> ... but it is provably false in Software.

Citation needed? Many of the sources cited in OP have flaws and/or have been refuted elsewhere, especially studies by Bessen & co. Many of their other sources are from people who don't know the first thing about patents. They cite that "This American Life" episode where the clueless dude from M-CAM suggested there's a patent on toast, something that you'd know is BS with a glance at the actual claim and 5 minutes of research on Google.

On the other hand, there are studies showing that having patents increases the chances of software startups get VC funding and successful exits by a factor of four. How much innovation happens without funding? Even the majority of open source is financed by various industry sources.

> When has something (in software) been invented by building on some text in a patent filing?

And how often is something in software not been built by simply copying somebody else's ideas? Some ideas are harder to generate (e.g. RSA) than others (e.g. online pet store) and deserve protection.

https://news.ycombinator.com/item?id=6816261

;-)

IANAL, but I believe this is incorrect. My understanding is that if you don't follow up with a non-provisional ("real") patent application, the provisionals don't count as prior art, and in fact might as well not exist. This is because provisionals are not published and cannot be discovered until the corresponding non-provisional is published. Would prefer if an actual patent lawyer could confirm, however.

http://patentlyo.com/patent/2015/08/agreement-microsoft-moto...

https://en.wikipedia.org/wiki/Microsoft_Corp._v._Motorola_In....

Sure, the lawsuit was started 2 months before Google acquired Motorola, and it was in response to an MS lawsuit, but the continued abuse of FRAND patents and the ensuing 14M penalty happened on Google's watch. Literally no other company in the smartphone wars suffered this fate.

> If patents are important in some industries (such as manufacturing machinery) but not in others (such as scientific instruments or chemicals in the 19th century), changes in patent laws may influence the direction if not the level of technical change (Moser 2005). These patterns are borne out in exhibition data: Countries without patent laws contribute as many exhibits and prize winners as countries with patent law. But their innovations are disproportionately focused on industries in which secrecy is effective, so that inventors are less dependent on patents.

Moser 2005 also points out that as the efficacy of reverse engineering increased (today you can reverse engineer almost anything pretty cost-effectively), more exhibitions started to focus on industries with stronger patent protection.

This is a curious point, however: it almost suggests that the proportion of innovators in a given population is (was) fixed, and they would innovate where the promise of rewards is highest.

Another important point: Cheaper patents meant "democratization of invention". There were more exhibitions with patents from people in rural areas in the US, where patents were cheaper, compared to UK, where patents were more expensive and almost all inventors were based in London.

One problem with this paper is that it makes broad generalizations based on narrow data: The fact that plant patents didn't increase the number of new rose varieties registered gets the headline "Intellectual Property Rights for Living Organisms Have Not Encouraged Innovation". It draws conclusions about innovation based on exhibit data where, by the author's own admission (Moser 2005), exhibitions may have significantly discouraged the inclusion of exhibits that were easy to copy.

Also, it's important to look through the other cited studies, because they almost always present data that is different from other papers. Some data can be more compelling than others.

Nonetheless Moser provides a fascinating view into how innovation may be influenced by incentives and policies.

Because all the manufacturers were using the technology they had invented, the very technology that made controlled heavier-than-air flight possible at a time when people were starting to doubt that it was possible. Many chose to fight the patent, but courts time and again found it to be valid and infringed. The Wrights may have gotten a bad rap for being litigious, but only because many like Curtiss tied them up in court for years to avoid paying royalties on technology they clearly owed.

> It is also pretty clear, despite the paper's claims, that the leaders in manufacturing and innovation were in Europe.

Not so sure about that. Most historical accounts still show America as being more innovative than Europe. Things like the seaplane were invented by Curtis in America.

>... hard to see any evidence that such patents have promoted the arts and sciences in any way.

There are a number of studies showing how patents help the arts and sciences. For instances, there are studies showing a direct increase in r&d expenditures and increase in strength of IP laws. Patents have been shown to increase the chance of finding from VCs and other sources. This has also been shown to apply to the tech and computer industries. It may be hard to see because few think of the huge role money plays in the vast majority of innovation.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673

As for the movie industry moving to Hollywood, it's not like they were building competing or advancing technology that was blocked by patents: they were just consumers that straight-up refused to pay for the technology they took advantage of.

> Industry progress on the TV happened only when the patents expired.

Hmm, hadn't heard of this. Source?

Or it may be saying Indian firms are not producing sufficiently novel software, so there is no net benefit to Indian society in granting them. It could be the majority of filers are foreign companies. Why protect inventions made by outsiders, who will only use it to tax local companies? This may sound far fetched, but historically most nations have gone this phase as they develop: Until they can produce state of the art technology indigenously, IP tends to hamper development, so IP laws tend to be weak. Once a nation starts becoming competitive in innovation, they tend to ratchet up their IP laws. There are studies about this, will try to find them.

(I've worked with the Indian software industry and still have close ties with it. I see even less innovation there than I see in the west. On the other hand, the startup scene is booming, so there's hope.)

Personally, I don't see much innovation in the software industry, mostly just reinvention of the same wheels over and over and over in slightly different contexts. Most of the really innovative stuff is locked away in various data centers and all we get are tantalizing glimpses when their developers deign to publish a paper or a measly blog post.

Why? Isn't that precisely why Google invested so much in Android?

To my knowledge, empirical evidence that incumbent patent holders in the software industry are suppressing innovators is mixed. This paper from 2006 claims no ill-effects have been felt: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926204

Another 2005 studies also suggests that patent thickets do not prevent the creation of young firms, and the use of patents may actually help startups: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=510103

On the other hand, this 2006 study finds that product areas with patent thickets see fewer new entrants: http://www.nber.org/papers/w12563 -- Interestingly, this paper also finds that startups with patents of their own are much more likely to enter a patent-infested product area.

There are many examples of innovation-by-forced-workaround happening. Consider the fact that development of Ogg Vorbis languished until the MP3 patents started getting licensed (https://en.wikipedia.org/wiki/Vorbis). This kicked the Ogg Vorbis project into overdrive, resulting in a format and codec that many consider superior to MP3.

Here's another example, from Stallman himself: http://www.gnu.org/philosophy/stallman-mec-india.html - he recounts an example of where they had to work around the LZW patents, resulting in GZIP, which "gave better compression results". This further eventually led to the creation of PNG when the GIF patent was asserted. The clear implication, of course, is that they'd have preferred re-using LZW (as all good coders should), but then they would not have invented GZIP and PNG.

There is a lot of empirical evidence showing patents incentivize investment of resources into innovative efforts, such as R&D expenses in large corporations and VC investment in startups. Of course, it's hard to quantify how much innovation this really drives because it's very hard to measure "innovation" itself. The drawbacks of patents include, amongst other things, the potential to reduce follow-on innovation. Again, this is very hard to measure at any meaningful scale.

> To support this point, we can look at the prevalence and utility of Open Source software projects; which work without patent protection.

Open source projects are driven by people willing to donate their efforts for free. (Well, it's not really free, is it? They are, to a great extent, sponsored directly or indirectly by organizations that typically extract value from something other than the software itself, such as, maybe data.) Do you expect that business model to work for everybody?

Not to mention that the vast majority of open source projects actually don't do anything innovative other than just re-implementing known technologies in a different context. There can be a lot of minor, follow-on innovation in open-source projects, but in my experience, the big advances come from other sources, such as academia, startups or corporate R&D labs.

Yeah, Google tried the "Schwartz said it's OK" defense during their trial, even putting him on the stand. Nobody bought it. That is the most telling thing of all.

APIs, on the other hand, are required for humans to create systems that interact with other systems. As such they are meant for human consumption and communication and can have significant creative expression. Note that to be interoperable with other Java code, Google did not have to re-use the existing API. They could have used their own APIs, or heck their own language, that compiled down to the same byte-code. This is why I think the interoperability exception does not apply to this case.

As such, I think this ruling does mean that most web APIs, being text-based and intended for human consumption, could be copyright-eligible.

(While I am not sure it nails all the nuances exactly, especially around the distinction between web and language APIs, it is an infinitely better account of the situation than what I've seen in any tech media so far. Golly, I wonder why.)

Of course, it doesn't help that the better informed comment is also down-voted, making it harder to find.

> Writings contemporary with that exact clause explicitly state its justification...

However, the clause wisely did not include any of that and just specified the intended ends ("progress...") and the means ("time-limited monopoly"). This has stood the test of time, as approaches that were not feasible before (e.g. the ease of reverse-engineering) meant secrecy was not an option and people sought other incentives to invest resources into innovative activity.

> A per-copy license fee of a penny kills FOSS completely; there is no "increased costs".

True, but just because it's FOSS does not mean it gets to free-ride on the fruits of somebody else's labor. If some people want to give away the fruits of your labor for free, more power to them, but that does not mean they get to demand others to do so as well.

> In all cases, I specifically noted the novelty of the software developed;

Well, leaving aside that things like WebRTC is entirely a re-implementation of pre-existing technology in a browser, I noted that much of the software was developed nonetheless. Any novelty developed could have been made available in many other non-infringing ways, such as publishing of papers or technical documents. I'd still say that counts as technical progress. Not being distributable as free software sounds more like a business problem to me.

> And in case it looks like I've only seen one side of the issue: ...

Ditto, besides working with patents, I've contributed to open source projects, open sourced a bunch of my own work and use open-source projects on a daily basis. I see waste and inefficiencies in both systems, but I also see what each has enabled and remain convinced that we need both systems.

> All innovation is follow-on innovation.

True, and this is why patent systems work by distinguishing claimed advances over the prior art before awarding a patent.

> "pay their fair dues" presupposes that ideas should have owners and monopolies who can extract dues;

Or it simply recognizes that ideas have value and people who come up with good ideas should be rewarded just as well as people who provide value in other means.

> The rate of innovation is far too fast for patents.

I have seen ideas introduced almost two decades ago get traction just now. The alternative viewpoint is that good ideas have value forever and 20 years is a fair amount of time to attempt to capture their value.

> "Ideas should not have owners, and inventors do not have an innate right to control ideas" is a defensible position, just one you disagree with.

My position is more that people should reap rewards proportional to what value they provide, and in my mind innovation is one of the biggest creators of value out there. As such Apple, the richest company in the world (and not one I particularly like) should have captured a much larger portion of the smartphone market. Unfortunately, we have no better means of capturing value other than treating things like property, and this has been extended to ideas. If there are better means shown to have worked for ideas, I'm all for them, but at this point, patents are it.

I agree :-)

> I'd recommend "Sequential Innovation, Patents, and Imitation" (http://www.researchoninnovation.org/patent.pdf), among others.

Personally, I would not recommend anything by Bessen without significant cross-checking. Many of the author's works have been shown to have poor methodology. As I recall (it's been a while since I read it), this particular paper presents a theoretical model with little empirical evidence to back it up. Additionally, it posits that R&D intensity does not increase with more patenting by firms, something that later empirical studies refute.

> Evaluating the positive effects requires not only identifying an invention/product, but determining whether the invention/product would still have been published/created in the hypothetical scenario in which patents did not exist.

That is one way to do so, but that is a narrow view. At the macro level, this can be shown by the amount of investment into R&D activity that is evidently incentivized by patents. More money and resources funneled towards innovative activity enables more innovation. While it may not serve as direct proof of specific innovations, it is obvious that without resources being invested into R&D, many innovations would not have occurred sooner or at all. Would Microsoft pour billions into MSR if it did not hope to profit from it at some point in the future?

> The meta-study covered three points: 1) efficacy at promoting innovation (one genuine purpose of the patent system), for which it failed to provide any direct evidence (things that would not have happened otherwise) and could only fall back on economic claims (rewarding things that were done; see (3)); 2) efficacy at promoting publication (another genuine purpose of the patent system), which it rather conclusively refuted; and 3) economic incentives and monetary evaluation of patents, which as a non-goal of the patent system (only a means), is irrelevant when evaluating whether a patent system should exist.

The goal of a patent system is "To promote the Progress of Science and useful Arts". Promoting disclosure, as is capturing rewards, encouraging financing and increasing innovation through forced work-arounds, are all post-hoc rationalizations of that clause rather than explicit goals. It is incorrect to say economic incentives are a non-goal. Insofar as it diverts more resources towards R&D, patent systems evidently do well.

> ... I don't consider the patent system's definition of "novel" the only measure of a technology's inventiveness or usefulness.

Agreed. I have a number of issues with the current implementation of patent systems, but not with the fundamentals.

> PGP, GCC, WebRTC, etc.

Thanks for the examples. I'll note that often what was prevented was re-implementation of existing technologies available on the market, and nothing prevented the research and development of follow-on innovation, only its distribution to the market, which ostensibly would also have been allowed if a license was taken. Sure that would have increased costs of downstream applications, but why should products not pay their fair dues to the upstream innovations that made them possible, even if the products themselves are given away for free?

In the case of MP3s, patents were directly responsible for spurring the then-languishing development of Vorbis, which many consider a better technology.

> Both of which I'd hold up as examples for "why we shouldn't have software patents". In particular, if you see i4i as a good example, then I'd deeply question your evaluation of value.

Both of them were operating companies whose technology was ripped off by Microsoft. I don't see what's so bad about i4i - they were a practicing entity that filled a business niche that MS ignored for years and then decided to just take over once i4i proved it was valuable.

> But in both cases, so what? Neither of those contradicts my statement that "I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything".

So this was not a strawman after all, and I guess therein lies our disagreement. I believe these inventors took enormous risks and caused an undeniable leap forward in their respective fields, and should have reaped proportional rewards. They certainly did well enough, but not nearly as well as they should have. Different value systems, I suppose.