28 February 2007

Patent Abuse

Oh, look. Here's yet another reason to get rid of patents:

Guess what? Radio frequency identification tags are insecure. But don't demonstrate the technology's problems at a security conference. If you do, HID Global, a manufacturer of access-control devices, might sue you for patent infringement.


The use of patent law to prevent vulnerability discovery and discussion is bitter irony, because a fundamental purpose of patent law is disclosure: In exchange for the right to exclude others from using, making or selling a novel invention, an inventor agrees to make public all the details. Once issued, patents are a searchable public record, and expire after 20 years.


Step Back said...

And we should get rid of the US Constitution too, because the Constitution makes possible these evil, hideous "patent" outcomes and therefore the Constitution itself is a hideous and monstrous invention.

That of course is said with tongue dug well into the cheek so as to indicate deep sarcasm.

Exactly what kind of "damages" do you think a jury will award for a one time demo? This would not be the first time in history that a jury awards the nominal $1.

On the other hand, the patent holder will have spent thousands for attorney fees and would have held itself up to extreme public ridicule.

If this "cease and desist" letter was actually sent by some law firm, then even the law firm that had the brains to do something like this would probably be held up to ridicule for advising their client to abuse the patent system in this way.

(Almost every system can be abused. On any given day, anybody can sue you for anything. That's just the way it is.)

Being that you are a blogger, and thus a truth seeker, can you dig deep into this story and produce the name of the lawyer and law firm that sent the alleged letter --and a true copy of the letter?

After all, you imply that you are in favor of disclosure. So disclose the letter. Prove that this actually happened.

Inquiring readers will want to know.

Glyn Moody said...

Well, this is a blog posting commenting on another story. That story ran in Wired, a pretty reliable source, written by someone whose credentials look good. If I were writing this story myself, you're right, I'd need to check all the details, but I think that blog posts work slightly differently.

More important than the details are the issues that it raises, notably that patents might be used like the DMCA to cast a legal chill over legitimate activity. You may well be right that damages would be small, but not many people would want to run that risk.

And my problem with the patent system is deeper: that it doesn't do what it is designed to do, that is, promote innovation. On the contrary, the granting of trivial patents - particularly in the area that I know a little about, software - acts as a deterrent to truly innovative work.

If you're feeling strong, you could find plenty more of this kind of thing on my blog; better, perhaps, would be to read something by some people who know what they are talking about: the (free) book Against Intellectual Monopoly, which considers this whole area rigorously.

Step Back said...


I'm surprised (but not negatively so) that you are open to debating this issue.

You style yourself as a journalist and then as someone who knows a "little" about "software" (where I presume the word "little" is meant to be emphasized in a sarcastic tone). I will take a look at that openware book you linked to. However, from first glance it appears to be a complete snow job.

I too know a "little" about software. It is very often the case that small business start ups who belive they have "innovated" something new walk into my office and beg for help in writing up a patent because they are frightened to death that MS will simply rip them off. And if it were not for patent protection, why shouldn't MS simply rip them off? And if it weren't for the promise of patent protection, many of these start ups would never go into business because the outcome would be that MS (or another Goliath of Greed-is-Good business) would simply rip them off after they did the pioneering work.

The Founding Fathers abhored monopolies.

Nonetheless, they were smart enough to realize that patents are a necessary evil. That is why the Constitution limits the grant of patents for a "limited time".

Patent-loathers such as yourself have the process ass backwards. The "patent" does not induce people to "innovate". It's almost always the other way around. First they innovate. Then they think about making a business of it. Then they say, why bother? MS will simply rip me off.

That, my good sir (mam? sorry don't know), is the moment the patent system steps in ... to give the innovators the moxie to go forward with their enterprise with some assurance (never 100%) that they might get compensated for their efforts.

There are ample examples around the world of countries that do not grant or honor patents. The number of "innovation" start ups that come out of those places can be measured at the nano scale. Is that the world you want to live in?

BTW I'm often surprised by Europeans who come to me looking for a US patent in software knowing that chasing after a patent in Europe is close to worthless. If it weren't for the possibility of an American patent, they wouldn't go into business in the first place.

Glyn Moody said...

The problem with your argument is that is predicated on the idea that at the heart of software there is some secret sauce, and that without protection, that secret sauce will be stolen. I'm afraid I don't believe that.

If you look at the history of software, the basic ideas are obvious: database, word processor, spreadsheet. It's not a question of having the idea of a word processor, and then jealously protecting it. You have to make a better word processor than everyone else. And that does not involve inventing yet more secret sauce. It's a complicated mix of many factors, not least of which is having some good code at the heart of your program.

If there's no secret sauce, you don't need patents to "protect" you, because there's nothing to protect. Your product itself is what people buy; and the code to that, of course, is protected by copyright (which I am in favour of, though only for the original 14 year term, and maybe less, especially for software).

Young companies can easily come up with cool new ideas and succeed without patents: just look at YouTube, MySpace, Digg, etc. etc.

Patents are completely irrelevant: even the basic idea is irrelevant. What matters are two things: being first, and doing something well. There are tens - hundreds maybe - of copycat sites that try to do what YouTube and the rest have done: they are mostly miserable failures. Unless they offer something really new, or something better, they will fail, as they deserve to. Patents are simply irrelevant to this dynamic.

Step Back said...

Speaking of the "history" of software, you happen to be talking to an old fart who was there at the dawn of the microprocessor based word processing scene. Remember the IBM magnetic card typewriter? Remember the Intel 4040? Nothing was "obvious" back then. The 4040 was too slow to do word-wrap or keep up with the keyboard.

Everything is "obvious" in hindsight. Why aren't you reporting to us about the next "obvious" thing before it happens? After all, if you are a journalist you would be working the true scoop story of the week by reporting to us about all the "obvious" things to come this year even before other people invent them.

I await with baited breath your news article on the next breakthrough (even before it happens, because after all, it's "obvious") in Natural Language Speech Recognition or in Artificial Intelligence (AI). How about new software that is guaranteed to forever beat human grandmasters at chess? Surely that is "obvious".

I do not look for a debate reply. I look forward to your actual work product reporting on the NEXT "obvious" thing. In the mean time, I have to get to the office and start writing because there are many an innovator waiting for me to write up their "obvious" ideas. I needn't tell you what those ideas are because apparently you already know. :-)

Glyn Moody said...

You see, it's even obvious to you:

"I await with baited breath your news article on the next breakthrough (even before it happens, because after all, it's "obvious") in Natural Language Speech Recognition or in Artificial Intelligence (AI). How about new software that is guaranteed to forever beat human grandmasters at chess? Surely that is "obvious"."

And indeed, people are already working on all these obvious things. And when somebody comes out with better implementations of these obvious ideas, they will probably do rather well - until somebody else comes out with an even better implementation of the obvious ideas.

And if you really want to know what the next obvious ideas are, I strongly recommend this blog, Open the Future, at


together with the other such sites it refers to.

Step Back said...

Well, I can't knock Jamais Cascio (Open Future) because he quotes Yogi Berra and he reads The Oil Drum. So apparently he is quite cognizant of the glorious 21st Century future that awaits us.

I wish it were more "obvious" to more people that Planet Earth is a thin crust spherical shell with only so much atmosphere above and only so much liquid hydrocarbon extractable from below. (We seem to be on similar wavelengths regarding those issues.) Do you blog on those issues too? I haven't read your full posts, just the patent-loathing ones. :-)

Glyn Moody said...

I certainly do blog about these, since they come within the general heading of commons, a subject close to my heart.

Alas, my theory of obviousness falls down in the face of people's ability to ignore emerging scientific consensus about global warming and the like....

Step Back said...

I understand your view brother. Man, as a natural and free creature of Nature should be allowed to program as he pleases without any oppressive government stepping in with these "patent" rules and telling him what he can or cannot do.

But then, by the same token, man as a free creature can burn all the coal and oil he pleases and fill the heavens with CO2.

It's the same coin no matter which way you flip it. ;-)