IP Lawyer: If You Are Against Software Patents, You Are Against Innovation
from the oh-please dept
I used to read a blog by a patent attorney named Gene Quinn. Sometimes it had some interesting posts on it with a strong pro-patent viewpoint. But too often he would just become a parody of the pro-patent position, making declarations that something was fact, when the evidence suggested otherwise. Late last year, he insisted that it was impossible for a patent attorney to think patents harm innovation. He also insisted that it was an economic impossibility for patents to not help innovation. When we presented an awful lot of evidence to the contrary in the form of numerous studies that looked at the historical evidence and made clear — from a variety of different angles — that patents do not lead to greater innovation, Quinn responded by saying he didn’t care about what the studies said, because he just knew that patents increase innovation based on what he saw. Consider it faith-based economics. Evidence be damned. Gene Quinn is right because he just knows it (oh yeah, and he profits from it too…).
Anyway, after that, I realized there was no reason to read his blog, but reader Brad points us to an absolutely stunning argument that Quinn has now made, saying that true innovators want patents, and only those who don’t innovate don’t like patents:
If you are against software patents you are not an innovator. Innovators want patents, those who do not innovate and copy others do not want patents
This was in response to Ian Clarke, a well known software developer, entrepreneur and someone who has argued strongly and articulately against software patents, pointing out in great detail, the harm they have done to the software industry. Clarke does a good job explaining his position, but Quinn doesn’t bother responding to Clarke directly, but makes up strawmen. For example, Clarke points out that he’s raised plenty of money from investors, despite being against software patents, and Quinn mocks the idea that any VCs would fund businesses without patents:
I would love to know who the investors are that are willing to provide funding for a software business that relies on trade secrets and copyrights. Naive investors like that would certainly be interested in companies with real protections. Simply stated, software cannot be adequately protected with copyrights, which I am sure you know or you should know. Likewise, trade secrets do not offer much, if any, protection for software. If the software is released the trade secret would be lost because anyone can get to the code.
Note that Quinn is both ignorant of the factual situation (many of the top venture capitalists around are against software patents — and Clarke lists out his investors, which include top tier VC firms) and then twists the story to something that Clarke did not say. Quinn seems to be of a belief that the only way a software company can be in business is with some sort of gov’t backed monopoly to “protect” them. It has apparently not occurred to him that businesses survive not based on protections, but on selling products and services, and you can do that without protectionism. In fact, here in the US, we tend to recognize that competition is a good thing. I’m not sure why Quinn is so against it. Oh yeah, as for VCs against software patents, we’ve discussed quite a few.
Clarke does a nice job responding to Quinn. Quinn — as he has done to me multiple times — refused to let Clarke’s post go live until Clarke complained and noted that it wasn’t worth responding any more, leading to this next extraordinary claim from Quinn, who seems more like a parody of the pro-patent side than anyone arguing seriously:
Everyone knows that those who don’t want patents just want to copy the work of others. Copyists are not innovators, they are a drag on everyone. Free riders are not innovators. I know you understand that, and suspect that is why you are leaving, having been defeated by logic and rational arguments. Sorry if I hit too close to home. Sorry also that you couldn’t stand up to the debate and chose to run and make false allegations in the process. Not surprising though.
Funny thing? Those are the same arguments used for ages before Quinn came along. He’s copying them. According to his own logic, he’s a drag on the system. Also, he went to law school at some point, and was given a bunch of information that he has copied into his brain. Free rider!
The debate goes on and Quinn continues to make fantastical assertions like the following:
Innovators by definition create things that are innovative, which means they are new, non-obvious and otherwise unique. Those who engage in endeavors that are unique do not begrudge others from obtaining protections themselves, because if what they are doing is really unique there is no skin off their nose for others to obtain protections. An innovator who concerns themselves with what others are doing and demands they stop obtaining patents are really only logically saying one thing. You shouldn’t get a patent and patents shouldn’t be issued because I want to copy you and I don’t want you to be able to prevent me from doing that.
This statement has so little connection to actual innovation (especially as done in the tech world) that it’s difficult to think what Quinn is possibly referring to. As anyone who has been near real innovation knows, actual innovation isn’t created in a vacuum. It involves building on the ideas of others and doing more with it — the proverbial standing on the shoulders of giants. But, in Quinn’s mind, apparently, standing on the backs of giants is free riding. He goes on in that same comment to accuse Ian of lying in claiming he has raised $15 million from some of the top VCs in the world. This is stunning. Ian is not lying. The facts are not hard to find. Ian is well-known and well-respected, as are many of his investors. Quinn did, of course, try to leave himself an “out” by saying that if Ian is not lying, then his investors are “the most naive investors in the world,” yet fails to note that they are actually some of the most well respected and successful VCs in the world. But, apparently that’s meaningless to Quinn.
Later on Quinn again makes the usual fallacy of claiming that any startup that is truly innovative and doesn’t get patents would go out of business quickly, because a big “Mega Corp.” would just copy the tech and the startup would go under. Of course, once again, the historical evidence suggests otherwise. Does this happen? Sometimes… but rarely. The reasoning is obvious if you’ve actually been around innovative companies. First, if your idea is truly innovative, Mega Corp. doesn’t recognize it until its too late. In typical innovator’s dilemma fashion, they dismiss truly innovative products as being “not good enough.” By the time they realize what’s happening, it’s usually way too late to jump on the bandwagon. Second, innovation is not a once-and-done thing, but an ongoing practice. If big Mega Corp. just copies, by the time they’re done copying, the innovative startup is already innovated past that and big Mega Corp. is just playing catchup. Third, by that time, the innovative startup has the reputation as the innovator, and people trust them more than the Big Mega Corp. doing the copying. We’ve seen this over and over and over again. Gene apparently missed it.
From there, the conversation spirals further and further out of control. If you ever want to see what the extreme pro-patent position is, then this is it. It presents no evidence at all (nowhere in any of the posts does Gene back up a point with evidence, but he does, repeatedly insist that “everybody knows” or something is “100% true” when neither is the case). When actual evidence proving him wrong is presented, he either ignores it, pretends it says something different than it does, or blatantly says that the evidence itself is a lie. Even if you believe in patents (software or otherwise), Gene Quinn is making a mockery of the pro-patent argument by arguing such things and ignoring any and all evidence that proves him wrong. There may be legitimate arguments in favor of patents out there, but Gene isn’t doing that side any favors by making himself look so ridiculous in the face of strong arguments to the contrary.
Obviously, I’m pretty strongly in the opposing “camp” on the question of patents, but even I can admit that, as with any monopoly, patents create two countervailing forces. The first increases activity in an area due to the promise of monopoly rents and monopoly profits. The latter decreases activity in an area due to the limitations created by a monopoly, and the power for such monopolies to prevent competition and continued innovation. The question is which force is stronger. And I’ve read many dozens of studies and historical evidence and nearly every one points to the latter being the stronger force. I’m willing to be convinced however by compelling evidence in the other direction. However, someone like Quinn doesn’t even seem willing to admit that these two forces exist and are in conflict. I don’t see how one can argue in favor of patents without at least admitting that the second force exists and has been proven over and over again — even if you still believe that the first force is stronger.