A Patent-Holding Software Engineer Explains Why Software Patents Harm Innovation

from the the-system-at-work dept

It's no surprise that many technologists and engineers dislike software patents -- even as their company's execs and lawyers push them to get more patents. Stephen Kinsella highlights an anonymous comment from a software engineer who clearly works for IBM (though he doesn't come out and say that directly), where he explains how IBM actively encourage engineers to file for as many patents as possible (it rewards them with monetary bonuses). This is not new of course -- an awful lot of companies do this. However, the guy goes on to explain why even though he holds patents and believes very strongly that his company makes and sells nuermous innovative products, he believes all this patenting is damaging to the process of innovation:
Speaking from my own experience, corporations (such as the one I work for) spend a lot of money to innovate. However, I would "press that button" and get rid of IP law immediately, given the chance. I agree completely with the arguements made in the article - as such, I'll just bring up a few other issues:

I think IP law is incredibly damaging to innovation and competition. In the case of software patents, moreso in that they take resources (primarily money which gets redirected to legal teams) from firms who are forced to research existing patens, and also defend themselves against IP lawsuits.

Many software patents are particularly silly. Many of these are issued for algorithms - the vast majority of the time, these algorithms are only available outside the company via patent! That is, when they are shipped externally, it is in a form that is not readable (object code). Sure - this can be reverse engineered. But for a particularly complex program or operating system, this in itself would be a colossal endeavor. Yet, a patent is issued for it - and the patent describes exactly what the algorithm does!

Another firm could look at the patent and use the invention. In most cases, it would be impossible to tell that they've "stolen" anything. Here they are counterproductive.

I should also mention the obvious - the corporation which holds the patent already has a huge advantage! They will ship a product with these innovations before any other corporation can ship its' product. Quite frankly it will generally be a significant period of time before another product can be shipped which contains these innovations - even if the innovation was immediately obvious and known. This will not generally be the case.

Then you have the patents for user interface - these are just silly. I've seen patents issued (granted, this was a long time ago) for using a particular color on a "dummy" terminal.

Anyway, I hope I do not sound like a hypocrite (because I hold IP patents). As I said, it is a part of my job. I also cannot fault my company for taking advantage of whatever silly laws are created. I simply view this as another case of the state interfering with the market, and the market adjusting to exploit the foolishness of the laws.
Well said.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Evil Mike, Jan 22nd, 2009 @ 8:05am

    Eloquence

    "I simply view this as another case of the state interfering with the market, and the market adjusting to exploit the foolishness of the laws."

    Eloquently stated.

     

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      Hulser, Jan 22nd, 2009 @ 8:22am

      Re: Eloquence

      "I simply view this as another case of the state interfering with the market, and the market adjusting to exploit the foolishness of the laws."

      Eloquent? Perhaps. But wrong in my opinion. "The state" didn't decide one day to twist the original intent of the patent system and encourage patent hoarding. The government may have been a willing participant, but it was the companies that saw this as a means to protect their own business.

      While it may have worked for the established companies in the shorter term, this new mentality has ended up hurting companies of all sizes (and their customers). Case in point: IBM may gain quite a bit of revenue from "silly" ideas that were patented, but they do so at the expense of maintaining a huge legal department to handle all of their patent issues.

      As I see it, the fact that companies feel like they have to create and hoard patents is an example of "you made your bed, now lie in it." The companies, not the state, brought it on themselves.

       

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        Evil Mike, Jan 22nd, 2009 @ 8:31am

        Re: Re: Eloquence

        Quite right, thank you for bringing that up.

         

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        usmcdvldg, Jan 22nd, 2009 @ 9:50am

        Re: Re: Eloquence

        I would be willing to bet a large sum that IBM makes far more off there patents than they spend on maintaining them.

         

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          Hulser, Jan 22nd, 2009 @ 11:34am

          Re: Re: Re: Eloquence

          I would be willing to bet a large sum that IBM makes far more off there patents than they spend on maintaining them.

          This may be true now, but as more and more bad patents are granted, the cost of litigation will go up as will the cost of maintaining your evergrowing staff of patent attorneys. Some would say this has already happened, but you could get to a point where nobody could claim any "new" invention without getting a barage of lawsuits that would bring even the big companies like Apple to a standstill.

          And this says nothing about the cost to the customer who is deprived of innovations because they're locked up in a lawsuit or never even brought to market for fear of a lawsuit.

           

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        Anonymous Coward, Jan 22nd, 2009 @ 9:50am

        Re: Re: Eloquence

        However the state could fix the majority of the issue, just by stopping the issue of software patents, and other patents that are either obvious or have clear prior art.

         

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        Anonymous Coward, Jan 22nd, 2009 @ 11:33am

        Re: Re: Eloquence

        This is why corporations shouldn't count as People. Legal Entities or Persons sure, but not The People. Only The People should have influence over Congress.

        More than just our laws get affected adversely for The People: campaign donations from companies should be outlawed as well. Gifts for law makers should be expressly forbidden.

        We need to give the power back to the People. Its a shame it will have to be TAKEN since corporations would fight tooth and nail to prevent such actions from taking place.

         

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        nasch, Jan 23rd, 2009 @ 9:54am

        Re: Re: Eloquence

        Eloquent? Perhaps. But wrong in my opinion. "The state" didn't decide one day to twist the original intent of the patent system and encourage patent hoarding.

        But the original intent (or at least intended means) of the patent system IS to interfere with the market, by granting an artificial monopoly. And the state decided that patents could be obtained for software, thus interfering with even more markets.

         

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      Joe, Jan 22nd, 2009 @ 10:09am

      Re: Eloquence

      Agreed...that one sentance was pretty much exactly what is happening.

       

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    chris (profile), Jan 22nd, 2009 @ 8:17am

    i love when insiders speak out

    i love hearing when people inside of and benefiting from a flawed system speak out against them.

    this is why i like cory doctorow's writing. as a sci-fi writer, doctorow has much to gain from IP law, and yet he, like the anonymous software engineer, would 'would "press that button" and get rid of IP law immediately, given the chance.'

     

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    NullOp, Jan 22nd, 2009 @ 9:35am

    Translation

    Corporations encourage the filing of patents in an attempt to create the much coveted monopoly. Companies really don't care to compete on a level playing field. They spend a great deal of time and money trying to succeed and trying to keep other companies from succeeding! IP is just one way they do it.

    Patents are the sign of a decaying, materialistic society. Imagine if whoever invented the first wheel patented it! Free will and freedom to invent are one of our best qualities but patents and IP law run against that grain!

     

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    Anonymous Coward, Jan 22nd, 2009 @ 9:36am

    "Many software patents are particularly silly."

    So are many patents in every other industry..

    "Sure - this can be reverse engineered. But for a particularly complex program or operating system, this in itself would be a colossal endeavor."

    So you probably oppose patents for drugs because of the colossal endeavor in reverse engineering. The truth however is that it doesn't take much of reverse engineering to arrive at a high level understanding of how a software algorithm works

     

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      Anonymous Coward, Jan 22nd, 2009 @ 9:48am

      Re:

      I shall respond to your pointless post with this pointless post! so there!

       

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      Anonymous Coward, Jan 22nd, 2009 @ 11:35am

      Re:

      You do when you have to create your own tools to reverse engineer the damn thing usually. Script kiddy, go try to decompile something other than a Half Life map. It can be a right pain.

      Try decompiling Windows. See how "easy" it is to reverse engineer.

       

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    Eddie Pasternak, Jan 22nd, 2009 @ 10:55am

    oops

    "...before any other corporation can ship its' product..."

    Oh please.

     

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    Richard, Jan 22nd, 2009 @ 11:01am

    wellll

    I agree that IP patents hurt innovation, and in fact I put that as my #1 gripe regaurding the current state affairs in the still emerging US Tech industry. We are only encouraging the next generation of start ups to move offshore to a country with rational views as to what can be considered "Intellectual property". The USPTO is where it is today as a result of lobiest efforts in the late 90s to permit ownership of the internet.. Thing is, it's ended up working against everyone except India, China, Russia, etc. ..

    Ok off the soapbox, IBM is a bit of a white knight. It has some of the most obvious and ubiquitously infringed upon (read totally undefinable) patents that you could imagine. Like accessing a database form a network (Seriously).. And it has (to the best of my knowledge) proven itself to be a champion of reason, and on occasion the little guy. Thus.. if I worked at IBM, I would gladly pad their portfolio, ONLY because patents are VERY dangerous in the wrong hands (Troll firms).

    site: http://www.bespacific.com/mt/archives/007272.html

     

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    Asbestos Boy, Jan 22nd, 2009 @ 12:14pm

    well put, Sir!

    "the vast majority of the time, these algorithms are only available outside the company via patent ... and the patent describes exactly what the algorithm does!"

    Precisely! That is how patents encourage innovation. It's all about dissemination of information.

     

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    johnny, Jan 22nd, 2009 @ 1:34pm

    patents at IBM

    In my opinion, IBM's patent strategy in the past was for the purpose of protecting their ability to use technology that they developed without having to keep it a trade secret and then protect against patent infringement suits later on.
    Patenting also gave them protection for their own inventions if they were key to a performance, efficiency or marketing edge on the competition.

    Most of the technical staff was encouraged to file disclosures so that the patent department (through peer review) could determine which patents were most likely to provide both protection and leverage in the market place.
    Disclosures that weren't patented were "published" in IBM's internal disclosure bulletins. These bulletins were also housed at a few key libraries and were considered as prior art so that no other company could file patents on these "inventions".

    Previously, IBM's patent department/process was considered a cost-center and IBM rarely filed for any patent that was not likely to be granted. For the time period that I'm aware of, the patent filing limit resulted in an average of about 600 patents granted per year and reached a maximum of 1085 in 1993. They weren't using the patents to collect royalties.

    More recently (over the last 16 years), the current patent strategy appears to have both a direct revenue and protection component. This is based on the number of patents IBM filed and were granted each year. This started at approx the time that Lou Gerstner became CEO and continues today.

    As a by-product of their strategy, more is know about IBM's technology than any other technology company and IBM is still a very profitable company.

    http://www.ibm.com/news/us/en/2009/01/14/e714183t64858z03.html

    http://www.industrywee k.com/ReadArticle.aspx?ArticleID=1228

     

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    anymouse, Jan 22nd, 2009 @ 1:59pm

    Why people don't look for 'ideas' in patents

    The whole 'willful infringement' thing pretty much prevents anyone from actually looking at other patents to get ideas, as once you have viewed someone else's patent on a subject, if you patent something similar, then can claim that not only did you infringe (even if it was a natural progression of the art), but that it was willful because you KNEW they had patented a simiar idea (and you now owe them 3x whatever damages are assigned).

    Due to this MOST companies discourage R&D from reviewing any patents, so that they can avoid the 'willful' infringement part when they make the next widgit that 'accesses a database from a network'.

     

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    dinnerbell, Jan 23rd, 2009 @ 6:36am

    "Speaking from my own experience, corporations (such as the one I work for) spend a lot of money to innovate. However, I would "press that button" and get rid of IP law immediately, given the chance." ....

    he wouldn't if they were his!

     

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    angry dude, Jan 23rd, 2009 @ 10:15am

    another anti-patent tripe from Mikey

    Big news !

    Any competent engineer who attended conferences and spoke to those IBM or MShit R&D folks (and read their shitty patents too) knows what they think about their own patents: SHIIIIIIIIITTTT !!!!!!!!!!!!!!!!!!!!

    On the other hand, there are PATENTS, usually owned by smaller companies and startups which DO teach some novel and unobvious stuff to the world

    If no patent protection is available then everything will be a trade secret

    Sofware field is no diferent from any other field, patentwise
    It just irritates me when ignorant morons like Masnick write anout somthign they have no clue about

     

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    angry dude, Jan 23rd, 2009 @ 10:24am

    IBM "patents"

    Greg Aharonian did a study of IBM patents a few years back
    He concluded that while IBM technology is generally pretty good, their patents are of extremely poor quality, almost all of them not citing any non-patent prior art etc. etc.

    I stidied a few IBM "patents" in my own field
    They are all shit, only sligly better that MShit patents, but still shit not worthy of reading

    BTW, the most prolific "inventor" was some IBM guy working on some semicionductor stuf, filing like couple patent apps each week (with his team)
    Can anybody seriousluy belive that one can invent something patent-worthy couple times a week, year after year ?

    Like I said, SHIIIIIIIIIIIIIIIIIIIIIIIIIIIITTTTT !!!!!!!!!!!!

     

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    Gene Cavanaugh, Jan 23rd, 2009 @ 3:17pm

    Software Patents

     

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    Gene Cavanaugh, Jan 23rd, 2009 @ 3:22pm

    Software Patents

    Well said! Add a patent attorney to the mix! Software patents, at least the ones I have seen, or any I can visualize, are bad for all of us!
    I also congratulate the tone of the article. There are patents that can help greatly, and are good for us - the Founding Fathers recognized that in the US Constitution. The article properly limited itself to software.
    Now, don't get me started on "non-invention" patents! There is a TON of those!

     

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    emotional logic, Jan 23rd, 2009 @ 4:33pm

    I would press the kill button

    For a web site that is supposed to be populated by rational technical people, this place eloquently performs as the opposite, a vent hole for infantile emotions.

    What is the rational behind, "I would press the kill button (on all IP laws) in a heartbeat"?

    There's no logic behind this. Just a GI-Joe thrill fest.

    If there were no IP laws, there would be great dis-incentive to invent and innovate. No need to be first. Just wait for the other guy to do it and then take his workproduct at zero cost. Don't tell me the market will compensate the first to invent. Quite the opposite. He bears all the costs and risks while the copyist is burdened by none of these.

     

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      Mike (profile), Jan 23rd, 2009 @ 10:36pm

      Re: I would press the kill button

      If there were no IP laws, there would be great dis-incentive to invent and innovate. No need to be first. Just wait for the other guy to do it and then take his workproduct at zero cost. Don't tell me the market will compensate the first to invent. Quite the opposite. He bears all the costs and risks while the copyist is burdened by none of these.

      For someone who claims to be interested in logical explanations, you really ought to try harder... or at least do a little research.

      You are simply wrong.

      Historical evidence has shown time and time again that what you claim is not true. In societies without patent protection, innovators are still rewarded and followers don't do nearly as well.

      Also, you seem to think that innovation is a static thing. It is not. It's a dynamic process. So, sure, a copyist comes along, but by the time he's copied your work, you're already on version 2.

      And, in historical research after historical research that's exactly what happened. But why bother understanding when you think you know what would happen.

      Sheesh.

       

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    EmperorArthur, Jan 23rd, 2009 @ 4:45pm

    NonObvious Algorithms

    While it may be true that IBMs patents are crap, Nonobvious algorithm patents may actually be important.

    The founding fathers set up the patent system as an alternative to trade secrets. If someone where to come up with an incredibly powerful encryption or compression algorithm I'd rather have that available to the public, even if no one else can use it.

    The problems that arise are ones of duration and obviousness. The original term for patents in the US was 14 years, but it's now up to 20. The software industry moves far too fast for any time period like that. A 2 year algorithm patent would give companies plenty of time to make their money while providing the public a new way of doing things.

    The problem with obviousness arises from the USPTO being either unwilling or unable to discuss these patents with people who have experience in the field in question or do basic research. Another way to resolve the issue is to simply disallow broad/vague patents, and fine anyone who submits one.

    If even my first suggestion was followed, then patents would be much less of an issue. The second suggestion would insure that only things that are of useful value and not just a tool to get money are accepted.

    Anyways that's my $2 on the matter.

     

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    Jerry Leichter, Jan 25th, 2009 @ 5:55am

    Different purposes

    I used to help on technical review of submitted proposals for patents at a large company. Proposals on patents for internal, hidden algorithms were almost never followed up on: They have no real value. It's too hard to know if someone else is actually using the patent. Even if you suspect someone is, it costs a great deal of money to start the legal proceedings that will give you the right to have their code examined - and then you face the difficulty that algorithms usually have variations, and the algorithm you thought they were using is actually not quite close enough - and even if it is, the company you're going after can usually come up with a workaround. Unless you're in the business of being a patent troll, there's not much economic point in such a patent.

    When profit margins were high and money flowed freely, I suspect a large part of this was just bragging rights on IBM's part. They could show they were among the leading tech companies by citing the large number of patents. Of course, this also works internally: Their large IP staff could cite their success in bringing IBM to a leadership position in patents to justify ... having a large IP staff. There's less of that sort of thing these days, because money is much tighter.

    There *can* be practical uses for such otherwise-useless patents as defensive measures: Having the patent yourself makes it impossible for some troll to get it and come after you. Also, patent lawsuits among the big players are usually settled by cross-licensing, the result of a kind of "mutual assured destruction": If you're actually producing product, as opposed to just trolling, and you go after IBM, they'll go through their vast library and find *something* that you're using. Now - shall we fight over both of these patents, or shall we settle quietly?

    By the way, the traditional advice to publish as a way of blocking patents has gotten dangerous as a result of misuse of provisional filings and continuation patents. I file a provisional filing, which is a brief, broad description that's supposed to be a place-holder. It, however, establishes a primacy date. Later, you publish - and I "clarify" my claims by saying they always included what you published. A provisional application is only good for a year, but by various creative games with vaguely drafter, overbroad claims, and continuation patents, one can stretch these kinds of things out. Improper, probably illegal in some cases - but people have gotten away with it.

     

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