Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.
You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(http://www.cs.cornell.edu/home.... The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)
The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).
Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.
And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.
> both researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT.
I do. I do with some regularity, and each time I come away more convinced that the majority of the press and discussion on the subject is complete garbage precisely because people don't bother to read them.
You give the PageRank example, missing though that there was work from IBM that was very similar.
There was a lot of similar work. There is always similar work. You'll find examples of it in the references section of the patent that nobody reads. Including:
'Jon M. Kleinberg, "Authoritative sources in a hyperlinked environment," 1998, Proc. Of the 9.sup.th Annual ACM-SIAM Symposium on Discrete Algorithms, pp. 668-677.'
And what do you do after you read a patent? Clearly, not building useful products that use those ideas, because a patent expressly prohibits you from doing that.
The part of the argument you're missing is that patent were intended to "promote the progress of science and useful arts" and, as they're practiced today, are doing the exact opposite: delay the progress and useful arts.
In software, if I can't use an idea for 20 years, it's useless. I would rather take my chances, think about the problem and come up with my own solution. Unfortunately, because of onslaught of patents, that solution is more and more likely to have been patented by someone else.
As a practitioner of software arts and science, I not only don't have the time to sift through thousands of patents, but I also risk potentially fatal damages by independently coming up with ideas of my own.
That is the cost of patents and it's becoming unbearable.
I agree completely. One of the key problems with software patents is the very idea that an algorithm is deemed worthy of patent protection simply because it is not obvious to the "average practitioner" of the art. But what skills/level of creativity constitute "average"? What if you have a company, like Google, whose core hiring principle is to find people who have above average skill and creativity? This seems to set up a perverse disincentive to hire smart people because the smarter they are, the more likely they are to rediscover on their own an idea that is already patented and thus violate it.
The fact is that if the idea patented truly is the best way of doing something then a lot of smart and above average developers are likely to unknowingly bump into that idea out of necessity. And this seems to be a problem that is unique to software patents precisely because of the closeness of software to mathematics itself. Some algorithms are provably optimal for a particular problem which means that everybody smart enough that faces that problem will solve it the same way. If you're smart enough to come up with the best way of doing something on your own but can not use it because it was patented then you're forced into a wasteful outlay of creativity just trying to work around the patent. I don't see this as spurring innovation or at least not worthwhile innovation.
The references section is actually a big problem with patents. Having worked with attorneys in the past on patents, they actually want you to find all prior art and to put it in the references of the patent. Why? Because patents are rarely invalidated due to 3rd party prior art listed in references -- even if it really would invalidate the patent looked at objectively. But it effectively takes that prior art off the table for future litigation.
I'd be surprised if Google didn't list Kleinberg's work as it was really well known in academic circles at the time. But if Google ever sued you with PageRank, and you tried to say, "Look -- prior art in Kleinberg!" They'd just say, "The USPTO already examined it and determined it isn't prior art. Sorry." You could almost certainly do a better job than the examiner in looking at the evidence, but the burden is proof is so high for you at this point that unless Larry Page wrote in his code, "This is a copy of Kleinberg's work that we slipped past the UPSTO" you're not likely to invalidate it.
I don't buy that at all. "Look -- prior art in Kleinberg!" is your opinion, not some kind of objective truth that was nefariously "slipped past" the patent office. The differences between PageRank and that prior work are crucial--they are what the patent actually covers.
Besides the fact that they're written by lawyers, a major reason software patents use such odd, useless jargon is because algorithms aren't actually meant to be patentable, but the PTO will let them through if they sufficiently submerge the algorithm in a sea of other gunk.
Nilay, I think your patent exchange misses a key point in software. No one reads them. Nobody reads patents. In fact, go talk to a Microsoft and Apple engineer about patents and they'll tell you that not only do they not read them, their corporate policy does NOT allow engineers to read patents. Apparently it drastically increases the likelihood of treble damages for the company.
You give the PageRank example, missing though that there was work from IBM that was very similar. See this classic paper, "Authorative Sources in a HyperLinked Environment" from 1997(http://www.cs.cornell.edu/home.... The genius/luck of Google was continuing to push this idea of search, when no one else seemed all that interested (recall AltaVista, Yahoo, and Lycos had all seen Google's results and were offered a chance to buy the company -- they all passed. Their genius was in persisting and not giving up and getting their PhD.)
The Apple patent you show is an example of what I call, "Being the first to ask the question". I'm not sure how else you'd solve the problem besides how they did it. It's the obvious way to do it. They probably lucked out because they were the first company to be faced with the question. This has become rampant in the mobile industry. Whenever you have a new form factor, there are new problems. They aren't necessarily hard, but they're new. And the fact that they're new problems means there's no prior art. You can suddenly file a bunch of patents based on your solutions, 99% of whcih are the same solutions the guy across the street would come up with in six months when he happens to hit the same problem. That's not innovation -- that's blocking innovation as it ensures your six month advantage becomes a 15 year advantage (or however long patents expire).
Nobody in SW reads patents. Furthermore patents are actually very hard for those in the field to follow. They use non-standard jargon. I'd much rather read source code or a CS paper to get the ideas -- as those are usually written just by the actual developer, and not translated by the lawyer.
And an unrelated, but important point, IMO. SW, unlike most other endeavors, is something that people rapidly build on. People still take aspirin today, in the exact same form as 50 years ago. No one uses a piece of software in the exact same form as 50 years ago. The closest is probably vi, but even vi has had significant code churn over the past 30 years -- it's quite possible that it currently shares no lines of code from the original version. SW evolves rapidly. Patents seem much better suited for fields where inventions can stand on their own for significant periods of time.