It would be something of an understatement to say that people have strong opinions about patents. But as Techdirt has reported, there's a growing consensus that software patents in particular aren't working -- James Bessen and Michael J. Meurer have written an entire book, "Patent Failure", about how bad things are there, and why it's happening in this area rather than elsewhere.
As I've noted, there is an sudden efflorescence of writing about the ills of the patent system. Obviously, on one level, that's great, but it's also becoming a little, er, boring. It means there are no contrary ideas to engage with, and that's dangerous for the health of the discussion, I think.
So I was really delighted to come across this post:
In the past few months, this rhetoric has grown to a furious roar, as the patent system seems to be affecting more and more of the technology industry in a negative way: small mobile app developers have been targeted with spurious lawsuits from companies that make nothing, major players like Apple, HTC, and Samsung are locked in patent-related litigation, and a pair of multibillion-dollar patent auctions has sparked an unprecedented war of words between Microsoft and Google. The most passionate critics loudly argue that whatever benefits our current patent system might offer have now been exceeded by its costs; that resources that should otherwise go to the development of new ideas are instead being misspent on the overzealous protection of the old.
This line of thinking has been so forcefully and insistently repeated that it has become almost axiomatic, an intellectual and rhetorical cheat that is rarely (if ever) questioned. But it’s also wrong — painfully wrong, in ways that sabotage any real attempt at reform. Being loud and angry is a great way to get attention, but it’s a terrible way to actually get anything done — especially since most of the emphatic chest-pounding sounds like a slightly dumber version of an argument we’ve been having in this country since Thomas Jefferson was appointed the first head of the Patent Office.
Splendid stuff - totally wrong, but splendid.
The article really makes two big claims. I'll address the second of them first, since it's more specific, and then look at the more general argument used.
If “the patent system is broken” is a lazy rhetorical cheat, then “software patents shouldn’t be allowed” is the most completely vacuous intellectual cop-out possible. The problem isn’t software patents — the problem is that software patents don’t actually exist.
What we keep calling “software patents” are just regular old patents; there is no special section of Title 35 that specifically delineates between hardware and software, or software and machinery, or software and anything else you might dream up. I don’t know when it became fashionable to pretend software patents were some funky and terrible new phenomenon, but it hasn’t always been this way: Y Combinator co-founder Paul Graham’s 2006 essay “Are Software Patents Evil?” remains one of the best holistic analyses of the software patent issue I’ve ever read, and it opens with “if you’re against software patents, you’re against patents in general.”
Well, yes, being against patents in general is certainly my position, but I don't think the author was looking for that kind of response. Instead, I'll explore his specific argument why software patents are just like any other kind:
But look a little closer and it’s easy to see that the boundaries between “just math” and “patentable invention” are pretty fuzzy. Every invention is “just math” when it comes right down to it — traditional mechanical inventions are really just the physical embodiments of specific algorithms. Consider the TurboTap long-necked draft beer nozzle, which was developed by a University of Wisconsin student named Matthew Younkle and granted US patent #7,040,359 — it pours beer faster and with less foam because of its long shape and internal structure. (I’ve conducted extensive… testing.) Isn’t that just a clever application of fluid dynamics? Where do you draw the line between the math that enables the invention and the invention itself? These aren’t easy questions, and we’re just talking about a beer tap. Things get even fuzzier when it comes to software, which doesn’t have a physical component to comfort our sense of justice. It really is just a bunch of math.
Now, speaking as a mathematician, I certainly concur with the view that everything is "just maths" in a certain deep sense: that is, we believe that we can, *in theory*, use maths to describe anything that exists. But in practice, some bits are trickier than others.
For example, take that TurboTap. As the author rightly notes, this is a "clever application of fluid dynamics" - except that it isn't. Fluid dynamics is one of those inconvenient bits of maths that we can't generally solve: the equations are just too complicated. Maybe one day some clever mathematician will come along with a clever method that will allow us to solve this stuff exactly, but I'm not holding my breath.
So what does this mean for the TurboTap? It means we can't design it using maths, because the instabilities of turbulent flow - which is pretty much all real-life flow - can't be calculated exactly. So the only way to design a TurboTap is to make lots of them, and find out which works best. In other words, you really have to *invent* the thing, because it's not discoverable from maths alone.
The same is not true of software. Although there are deep issues of checking whether programs work, the logic of a computer program is cast-iron: there are no fuzzy bits due to turbulence. If you simply apply the laws of logic and maths, you know exactly what will come out at the other end. So you are not inventing, you are discovering: those structures were always implicit in - and limited by - the rules of logic and maths, unlike the TurboTap that required human intervention to make it come into existence through practical exploration of Nature's unmapped possibilities.
This fundamental distinction between software patents and the other kinds is reflected in all the problems that are cited with the former: the fact that they are patents on knowledge, and the fact that you often can't invent around such patents, because that's like trying to invent around logic.
Most commentary has concentrated on the claims about software patents, but there is another that I think needs rebutting, since at its heart lies a profound misapprehension about patents today.
Here's the key paragraph:
Now, you can argue about the length of the patent grant, and about what specific inventions should be granted patent protection — these are all important and ongoing arguments. But the fundamental basis of the patent system is full disclosure from the inventor in exchange for an explicitly limited term of protection, and any effort to identify problems and reform the system has to respect the value both sides derive from that exchange.
That's certainly true, but the question that needs to be asked is whether the benefit obtained from patents through such disclosure is now being outweighed by the cost to companies and society of the litigation over patents that the growing patent thickets are giving rise to.
As I've argued elsewhere, the key issue here is that the patent system was created in the 15th century, when inventors and inventions were scarce; disclosure was extremely valuable for the reasons the article rightly emphasises. Today we live in a world of inventive abundance: there is simply no shortage of inventors or inventions. So we no longer need to pay the price of granting intellectual monopolies to people. People will still invent and make money from their inventions even if they are not protected by patents. Because the fewer patents there are, the more valuable each becomes, which encourages more people to invent until equilibrium is attained.
Ironically, the article I've been exploring provides a good example of why the patent system is grinding to a halt, and why it is simply not sustainable.
In his discussion of disclosure, the author points to Apple:
all those Apple multitouch patents are more than just attempts to prevent competitors from using a specific technology — they’re also detailed instructions for building that exact same technology in the future. Here’s a part of US patent #7,812,828, which Apple’s particularly fond of asserting in lawsuits: it lays out a system for tracking multiple finger and hand inputs on a multitouch surface and correctly filtering them.
(Amusingly, the two equations that follow, presumably quoted to impress us with their mind-bending complexity and originality, turn out to be a formula of speed - distance divided by time - and basic Pythagoras. Both are important, but of course trivial from a mathematical viewpoint....)
The patent in question is for "Ellipse fitting for multi-touch surfaces". As is customary, it begins by listing all the other patents that it cites. By my rough count, there are over 250 such citations of relevant technology. Judging by the dates they were granted, most of them still seem to be in force.
Now, some of them belong to Apple, but most of them do not, as far as I can tell. Since they are cited, they presumably have some relevance to the current invention, at least in terms of forming the intellectual background against which it was devised. I wonder how many Apple has needed to licensed because of that. After all, if it cites them, presumably at least some potentially represent important inventions that Apple is building on directly. Moreover, the ability for patent holders to block others from using its invention in further inventions means that there only needs to be *one* patent that its owner refuses to licence, and Apple has a problem.
I don't know about the particular details here - it might be that the citations are sufficiently distant from Apple's patent that they are not an issue. But 250 citations is a big number, and the bigger this number gets in patent applications, the more likely that at least one of them will demand royalties or block the new patent. Indeed, we are already seeing just such problems in the area of smartphones, where the patent thickets are already hampering innovation, and raising prices for customers as a result.
It's this downside of patent abundance that is the problem today. But as I've suggested, patent abundance is also the solution, because it means we don't need to provide an incentive to invent stuff any more.
The main problem with the post discussed here is that it doesn't step back to look at the bigger picture. Although it rightly discusses the original rationale of patents, it fails to relate that to the very different circumstances surrounding inventing today. When you do that, you find that abolition really is just a question of doing the maths.
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I thought we had got beyond this daftness:A Cellist was held at Heathrow Airport and questioned for 8 hours this week. A terrorist suspect? False passport? Drug smuggling? If only it was so dramatic and spectacular. Her crime was coming to the UK with her cello, to participate in musicology conference organised by the School of Music at the University of Leeds and it was for this reason that Kristin Ostling was deported back to Chicago. What was UK Borders Agency (UKBA) thinking? That she would sell her cello to earn some cash, or do a spot of moonlighting at some secretive classical music gig, while she was here?
The Conference organiser, Professor Derek Scott informed the Manifesto Club that “She was not being paid a penny for this, but these zealous officers decided that playing a cello is work and, paid or unpaid, she could not be allowed in.”
Lovely logic here: if you are a professional cellist it follows that putting bow to string is work, and therefore not permitted according to the terms of your visa. And as the article explains, it's the same for painters and photographers: if you dare to create a masterpiece here in the UK, you might end up being deported, and blacklisted.
Now, call me old fashioned, but it seems to me that we should actually be *begging* artists to come here and create: it not only enriches the cultural ecosystem based on the UK and all it contains, it makes it more likely that other artists and non-artists will want to come to the country to see where these works were spawned, bringing with them all that valuable touristic dosh that everyone seems to be scrabbling after these days.
But the problem is really deeper than this simple loss of these earnings. What is really disturbing is the crass way the UK Borders Agency equates artistic creation with work: if you act as an artist - even if you are not paid - you are theoretically doing something that should have a price on it. This is really part and parcel of the thinking that everything should be copyrighted and patented - that you can't do stuff for free, or simply give away your intellectual creations.
It's a sick viewpoint that leads to kind of shaming situations described above. And of course, in the usual way, the people imposing these absurd practices haven't though things through. After all, if musicians can't play, or artists paint, when they come to the UK, surely that must mean by the same token that visiting foreign mathematicians can't manipulate formulae, and philosophers are forbidden to think here...?
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Yesterday I was praising Red Hat's submission to the EPO in its pondering of the patentability of software. Today, it's the FSFE's turn. They've produced a fairly short but sweet document, which has a sentiment close to my heart:4.(a) Does the activity of programming a computer necessarily involve technical considerations?
No. The reverse is almost invariably true. Any software program is the result of programming, which is in essence combining a series of algorithms, and algorithms are matematics.
Got it in one.
In the long run, what drives the wealth and success of an economy is productivity and efficiency. In my opinion, many of the principles of wikinomics continue to hold the promise of an extraordinary amount of efficiency and productivity to be unleashed, which should/ could have amazing long-term benefits. But in the short to medium term, I see the potential for a very difficult paradox - what makes the economy more efficient and productive as a whole causing a major dislocation of workers, who as we all know are also the consumers, and as they have less to spend the economy potentially shrivels up in a way similar to the paradox of thrift.
Well, yes, but economics doesn't really enter into it (except as a by-product): what we're talking about here is mathematics. Things that can be done in a distributed fashion online, will get done (subject to a raft-load of caveats) because on the Internet - the Great Greaser - there's no friction to stop it. Whether people suffer dislocation doesn't enter into it - however regrettable it may be.
Westfield State College senior mathematics majors Jeffrey P. Vanasse and Michael E. Guenette, working under the direction of Mathematics Department faculty members Marcus Jaiclin and Julian F. Fleron, have made a significant new discovery in the mathematical field of number theory. They have discovered the first known example of a 3 by 3 by 3 generalized arithmetic progression (GAP).
And how did they do that?An algorithm to check the necessary cases – still easily hundreds of trillions of cases – was programmed using a Linux version of the computer language C++.
Nothing extraordinary there - except that it's not extraordinary....
Although I've written elsewhere about the recent court case of Symbian v Comptroller General of Patents, noting that it was bad news, I hadn't realised quite how bad the news was until I went through the complete judgment. It's plain that the judges in question, who to their credit tried their level best to understand this mysterious stuff called software, failed to grasp the central issue of what software is. As a result, they have passed down a judgment that is so seriously wrong it will cause a huge amount of damage in the future unless it is revoked by a higher court....
On Open Enterprise blog.
Wow, there are some clever bunnies up at the EPO these days. Try this for size:
Relying on a well-known and widely used definition, a computer-implemented invention is an invention whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program. The term software, on the other hand, is ambiguous. It is generally understood as the implementation of an algorithm in source or object code, but without distinguishing between technical and non-technical processes.
As with all inventions, computer-implemented inventions are patentable only if they have technical character, i.e. solve a technical problem, are new and involve an inventive technical contribution to the prior art.
Right, so let's just go through that.
As the EPO says, software does not distinguish "between technical and non-technical processes". The reason it doesn't distinguish is because it is a completely factitious distinction: it doesn't exist. Software is just a bunch of algorithms working on data, outputting data; it doesn't solve "technical" problems, it solve mathematical ones. Software is mathematics.
But that's a bit of issue for the EPO, because that would mean that it could never, ever give patents for anything even vaguely software-ish. To get round this, it invents a mystical essence called "a computer-implemented invention", which is basically hardware plus software, with the magical property that the addition of the hardware makes the software patentable, even though the software is still inputting data, applying a few mathematical algorithms, and then outputting data. But to do this, the EPO has to dismiss that embarrassing concept known as "software" as "ambiguous" - by which it means "awkward for the purposes of its arguments".
You can tell that the EPO is not really convinced by its own logic here, since it goes to make the following emotional appeal:Try to imagine a world without mobile telephones, refrigerators and washing machines, DVD players, medical imaging (X-ray, NMR), anti-lock braking systems (ABS) for cars, aircraft navigation systems, etc., etc.
We take many of the above items for granted in our everyday lives. Still, we realise that they contain highly complicated components. And, indeed, they all make use of computer-implemented inventions, frequently implemented by software. Nowadays such inventions can be found in all fields of technology, and in many cases the innovative part of a new product or process will lie in a computer program. Our lives have been immeasurably changed by these inventions and the benefit to individuals and society is enormous.
Think for a moment how much effort and investment has been put into the development and commercialisation of these products. Then ask yourself if the innovators would really have made that effort if they had not expected to benefit economically. Finally, ask yourself if these same innovators would have invested all the money and resources required to develop new or better products without the possibility of patent protection. The reality is that many important innovations have reached the market place with the help of the patent system.
Now, of course, what's really interesting about this argument is that it's been used before:
As the majority of hobbyists must be aware, most of you steal your software. Hardware must be paid for, but software is something to share. Who cares if the people who worked on it got paid?
...
One thing you do do is prevent good software from being written. Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free?
Bill Gates wrote that in 1976, never dreaming something like free software could not only exist, but thrive to the point of underming his own company. And so it is with all these wonderful inventions.
Today, more and more companies are routinely making available precisely this kind of system and embedded software as open source; patents are completely unnecessary to encourage this kind of innovation, and the EPO's argument here, as elsewhere, is specious. Indeed, it is downright wrong-headed: it is becoming clear that the best way to promote innovation and provide benefits to society is to make information freely available so that others can extend your work unhindered.
And so the argument for "computer-implemented inventions" fails both at a theoretical and at a practical level: such patents are worse than unnecessary, they are impediments to innovation and progress (as, most probably, are *all* patents.)
But I have to say, the EPO would have made fine Jesuits.
Speaking as a mathematician, I have never understood why economics ignores its environmental effects, since this fundamental error in the model almost guarantees things like climate change, deforestation, overfishing and the rest. It seems I'm not the only one:
the mathematical theories used by mainstream economists are predicated on the following unscientific assumptions:
* The market system is a closed circular flow between production and consumption, with no inlets or outlets.
* Natural resources exist in a domain that is separate and distinct from a closed market system, and the economic value of these resources can be determined only by the dynamics that operate within this system.
* The costs of damage to the external natural environment by economic activities must be treated as costs that lie outside the closed market system or as costs that cannot be included in the pricing mechanisms that operate within the system.
* The external resources of nature are largely inexhaustible, and those that are not can be replaced by other resources or by technologies that minimize the use of the exhaustible resources or that rely on other resources.
* There are no biophysical limits to the growth of market systems.
If the environmental crisis did not exist, the fact that neoclassical economic theory provides a coherent basis for managing economic activities in market systems could be viewed as sufficient justification for its widespread applications. But because the crisis does exist, this theory can no longer be regarded as useful even in pragmatic or utilitarian terms because it fails to meet what must now be viewed as a fundamental requirement of any economic theory—the extent to which this theory allows economic activities to be coordinated in environmentally responsible ways on a worldwide scale. Because neoclassical economics does not even acknowledge the costs of environmental problems and the limits to economic growth, it constitutes one of the greatest barriers to combating climate change and other threats to the planet. It is imperative that economists devise new theories that will take all the realities of our global system into account.
Amen to that.
The Owner-Free Filing system has often been described as the first brightnet; A distributed system where no one breaks the law, so no one need hide in the dark.
OFF is a highly connected peer-to-peer distributed file system. The unique feature of this system is that it stores all of its internal data in a multi-use randomized block format. In other words there is not a one to one mapping between a stored block and its use in a retrieved file. Each stored block is simultaneously used as a part of many different files. Individually, however, each block is nothing but arbitrary digital white noise.
Owner-Free refers both to the fact that nobody owns the system as a whole and nobody can own any of the data blocks stored in the system.
It's a fabulously clever approach, a simplified explanation of which you can find on Ars Technica.
Anyone who can writeTraditional rules do not apply. Mathematics is the only law.
is clearly on the side of the angels. But I fear that all this cleverness is indeed a matter of digital angels dancing on the head of a digital pin. The maths is indubitably delightful, but it wouldn't stand a chance in any court, which would simply dismiss the details and concentrate on the result: that copyrighted material is being accessed in different places.
It's all very well to sayNo creative works, copyrighted or not, are ever communicated between OFF peers. Only meaningless blocks of random data. No tangible copies of creative works are ever stored on OFF peers.
But this cannot be literally true. If it were meaningless data, it would not be possible to access the copyrighted material; even if it is disembodied slightly, that meaning has to be present in the system, and transmitted between different users. Therein lies the infringment according to current copyright laws.
Mathematics is not, alas, the only law.
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