Patent Lawyer Insists Open Source Stifles Innovation
from the gene,-please,-you're-making-us-laugh dept
I have to admit that I’m finally beginning to believe that patent attorney Gene Quinn is really a joke made up by someone trying to embarrass patent attorneys. He’s an elaborate satire of the most ridiculous possible position a patent attorney could take, to highlight via reductio ad absurdum the sheer farcical nature of the positions held by many patent attorneys. He’s the same guy who said anyone who was against software patents was against innovation — even if the evidence showed that getting rid of software patents could lead to greater innovation. He also challenged me to a debate, saying it was impossible to make a statement that patents hindered innovation, and when I pointed out the detailed evidence supporting that position, he insisted he “didn’t need” evidence, because of what he could see with his own eyes. I mean, this is not someone that you can take seriously. So I’m now coming to the conclusion that he’s really just a made up joke by anti-patent folks to show where the ridiculous positions taken by some patent attorneys leads to.
For example, take the latest “Gene Quinn” post, where he insists that open source software stalls innovation and that patents advance it. First, as you read through the blog post, you realize that Quinn can’t actually make that argument. So he doesn’t. Instead, he makes a totally different argument about whether or not software developers should spend their time doing searches on prior art. Now, we’ve had this discussion plenty of times in the past. Due to the way patent law is structured, if a patent holder can show “willful infringement,” then they can get treble damages. For this reason many patent attorneys (not just those advising open source developers) recommend not looking at other patents, because some lawsuits involved patent holders claiming there was willful infringement if you had seen their patent. Thankfully, the courts have been raising the standard for proving willful infringement, but still this is a common recommendation.
Except, in Quinn’s world, this is something that is just done with open source developers, and then you have to follow a maze of twisty little passages of the mind to watch as Quinn tries to contort this fact (which, again, has nothing to do with open source) into proof that open source is bad for innovation. The key nugget is here:
Stepping back for a moment and looking at the “don’t look” advice from a different perspective, for those who want to do original work, I really don’t know how you can do anything original without knowing what else is out there. If the goal is an artistic or creative one, as is the case with academia for example, the only way to know where to try and make a mark is to endeavor to know the industry and figure out what others have done, and then seek to identify what hasn’t been done. This is one enormously positive aspect of the patent system. While clearly imperfect, when people and companies want to innovate and want to build a business and attract investors from zero to start-up they seek out the spaces where there are opportunities.
Except, of course, almost nothing in this paragraph is accurate. We’ve already pointed out that the “don’t look” advice is spread around widely and has nothing, specifically, to do with open source. Second, developers aren’t looking to “do original work.” They’re looking to do useful work. Necessity is the mother of invention and all that. Innovation doesn’t come from looking for something that “hasn’t been done.” Usually, it’s in response to a need that you are seeing in the market place, and when you see that need, it doesn’t matter if others are doing something already. The fact that you see a need that hasn’t been fulfilled means that there’s an opportunity.
In some ways, Quinn’s mistake here is simply a restatement of the mistake many patent attorneys make in confusing idea and execution. He assumes that for innovation to occur you need to have an original idea, rather than just a better way of solving a market need. And, the idea that you have to do something “original” to attract investor attention suggests that Quinn doesn’t spend much time in the venture capital world. It’s pretty well known out here in Silicon Valley that if you come to investors with something truly original, you’ll almost never get an investment. It’s just too difficult. They can’t fit that into the model they’re working with. To get an investment you need one of two things — neither of which is “finding some original space.” No, you need a story about how you’re doing something the VCs already understand, but better (i.e., the opposite of what Quinn suggests) or you’ve got a great track record of executing. That’s because most good (successful) VCs recognize the difference between ideas and execution. And they’ll bet on people who can execute over people with ideas every single time.
There’s plenty more that’s ridiculous in Quinn’s post — which is why I’m pretty sure that Quinn’s blog is pure satire that had me fooled for many years, but I’ll just respond to one more point, because it’s so amusing:
I have a real philosophical problem with those who want to copy, whether it be intentionally or without knowing. We ought to want to find the open spaces and fill them. That is what Thomas Edison did, and many thousands of others throughout our history.
As anyone who’s actually studied Thomas Edison knows quite well, pretty much all Edison did was copy others. Nearly all of his great “inventions” were actually invented by others first. Edison, on the other hand, was great at taking the inventions of others and innovating. That meant making minor tweaks to make the offerings more marketable, marketing the hell out of them… and, oh yes, using the patent system to try to wipe out any of the competition (even if they had much, much, much better products).