Every once in a while, I read some argument that boggles my mind. This is one of those situations.
The name drop (IBM’s not Manny’s) left me excited me to hear what IBM’s Chief Counsel would have to say about something I’m very interested in… I figured I might learn something. In the first few sentences of Manny Schecter’s opinion piece in Wired, my brain was already was reeling. What follows are my notes as I read the article:
And they’re nothing new: Similar skirmishes have historically occurred in areas as diverse as sewing machines, winged flight, agriculture, and telegraph technology. Each marked the emergence of incredible technological advances, and each generated similar outcries about the patent system.
Paraphrase: Patents are great because they’ve always created outcries!
“We are actually witnessing fewer patent suits per patent issued today than the historical average, according to economic historian Zorina Kahn. The rate of patent litigation was twice what it is today compared to some decades in the mid-19th century.”
Paraphrase: Patents are great because they’re not rigorously enforceable! There are so many patents, we don’t even know what is patented! noted later, in 2011 40% of patent suits are brought by ‘non-practicing entities’… not companies that build devices or software
“Economists also tell us that 75 percent of a company’s value is attributable to its intellectual property (IP) - and that IP-intensive industries contribute \$5 trillion per year to the U.S. economy. These industries account for about 35 percent of gross domestic product and 40 million jobs, including 28 percent of the jobs in the United States.”
Paraphrase: Patents are great because the industries they protect make tons of money (that presumably wouldn’t be made if there weren’t patents). This is a specious argument: the fashion industry makes a SHIT TON of money on similarly iteratively, innovative products.
“But six of the 10 companies globally with the highest software revenues are U.S. companies, including the top three. In other words: The success of the U.S. software industry correlates with its use of software patents to protect its innovations. If patent litigation caused by the U.S. patent system stifled innovation, U.S. software companies would not be the most successful in the world.”
Paraphrase: Patents are great because Correlation = causation! Again, software is, by necessity, built iteratively, on the backs of other’s work. Patents inhibit that creative loop. It seems to me that if we buy that software should be protected, that a copyright protection makes better sense for software… it’s written, after all.
“And it’s not just software-focused companies. Software is increasingly the way innovation is implemented in all industries. Consider for example an automotive fuel efficiency invention that manages engine cylinder operation. A purely mechanical implementation would add too much weight, offsetting the improvements and eliminating the environmental benefits. But using software-controlled microprocessors results in enhanced efficiency, reliability, and safety … all at reduced cost.”
Paraphrase: Patents are great, because (for the next seven or fourteen years) only one car company can develop a software solution to save gas… regardless of whether they develop it on their own. We’ll protect the idea of using software to control fuel economy.~~ It’s been brought to my attention that I’m not doing a good job of explaining myself here, so I’ll let the rest of my comments stand while retracting this one.
“If an invention is novel, the idea that it should be patent-protected in hardware but not in software makes no sense.”
Paraphrase: Software patents are great because other patents are great!
“Denying patent protection for software will cause these developers to look for other ways to protect their IP investment - resulting in code that is less open, less accessible, and less interoperable.”
This is specious and circular. It relies on the argument that “ideas” are “IP” to be protected by law (something i’m willing to consider, but something which I don’t buy outright) … which is the argument in question. Copying code is hard… millions of copies of windows exist but very very very few people have access to the ‘source code’ which is why linux doesn’t look much like windows (more like osx, which copied most of its codebase from unix). It’s hard to imagine something less open, accessible & interoperable than iOS… which is owned by Apple, a huge patent portfolio.
“We’ve just begun implementing the America Invents Act: the most significant U.S. patent reform in our lifetime. Passage of this legislation required many years of hard-fought negotiation and compromise among patent system constituents. It was truly a bi-partisan, cross-industry accomplishment.”
I don’t know anything about the America Invents Act but I’m interested to learn more. Another day, perhaps… I’m going to read this rebuttal now.
In the interest of spirited debate, please let me know what you think.