Fun With Greg and Tim

by on June 12, 2007 · 14 comments

TLF co-blogger Tim Lee had an oped in the New York Times on software patents; Greg Aharonian offers his usual pointed response. Am thinking of inviting them both to lunch.


Tim’s piece points to Bill Gates’ concern over the granting of too many software patents, voiced in 1991, and Microsoft’s role today as a major holder and filer of patents. He cites Verizon’s patent suit against Vonage as an example of how patents stifle innovation, and advocates copyright protection instead.

The substance of Greg’s rejoinder is thus:

“based on journal literature, industry gross sales, published books, and more consumer crap to fill garbage dumps with, there is ZERO evidence that technology is being stifled… His main example is Vonage’s loss to Verizon, which a) won’t lead to any technology stifling, and b) is more an example of hiring incompetent litigators (the Verizon patents are pure crap if you hire a good searcher who hands his results off to good litigators).”

And he further notes “The software industry continues to grow in sales each year, with
new companies being formed and failing, and old companies growing and
failing, mostly for reasons having nothing to do with patents, but rather due to
management, marketplace shifts, technology innovations, etc.”

Regarding copyright protection, Greg notes that Altai leaves software copyright protection in a cloud of uncertainty, “You think applying the Altai test is simple (other than applying the Altai test to say nothing non-literal about software is copyrightable because it can’t survice [sic] abstraction and filtration)? Have you read the endless law review articles pointing out the contradictory nonsense of software copyright caselaw, which are the rules that people have to deal with to protect their software with copyright? Do you read?”

And defends the patent system as “trying to respect Due Process, that is, provide some public notice before a lawsuit of what is and isn’t protected in a new piece of software, a joint scientific/legal determination that is … cumbersome?”

And last but not least, when Tim offers, “As more and more lawsuits rock the industry, we should ask if software patents are stifling innovation” Greg notes, “Which means that at this point in time, Lee doesn’t know if they do or they don’t stifle.”

Ugh. Well, here we go. My take.

1) In fairness to Tim, Greg has also expended a good bit of energy in pointing out that tech executives on the one hand point out the problems of patents in the tech area (hardware as well as software, and IBM as well as Microsoft) while filing patent after patent, many of them questionable.

My take: This contradictory behavior isn’t really evidence of anything at all; not a pernicious change of heart by Microsoft now that they are a large firm (Tim) nor a pernicious hypocrisy by IBM (Greg) but simply reflects the fact that the firm’s short term interest narrowly conceived (file lots of patents) are not necessarily in the firm’s long term interest broadly conceived (make sure the patent system isn’t clogging up the whole economy).

2) My take: the focus on software patents in the oped is, however, rather misleading; the problems of the patent system are broader than that, affecting tech in general and not software in particular. Furthermore, these problems are not inherent in any patent system, but are peculiar to our system, because of problems with the way it is administered. Note that in Lee’s 1991 quote from Gates, Gates is concerned not that software patents are inherently bad, but that the way they have been implemented has not worked out.

3) It is doubtful whether it would have been possible to know in advance the “correct” answer to the question of whether copyright law or patent law “ought” to be applied to software. There are arguments that cut both ways. There is no evidence that going back would offer an improvement. The best thing for the future:

a) Strengthen patent institutions so that decisions on close calls like this are made as well as they can be
and
b) Strengthen patent institutions so that where-ever it is applied, the chances are low that the patent system does more harm than good over the long run.

4) The evidence that software patents are harming innovation is weak or nonexistent. Mostly, at the innovation stage, patents are ignored. Trolls are unlikely to target tiny players. It is later on, when the innovation is being put to use in implementing an ambitious business model, that problems show up. The evidence that patent litigation is imposing unnecessary costs on the economy is growing. But, again, this is true for sectors other than software, and for litigation other than patent litigation.

My take: Tim Lee’s article relies too much on hindsight and the specifics of a particular industry at a particular place in time to be a good guide to policy going forward. But Greg’s confidence in the patent system is overstated.

  • Brian Moore

    “Furthermore, these problems are not inherent in any patent system, but are peculiar to our system, because of problems with the way it is administered. Note that in Lee’s 1991 quote from Gates, Gates is concerned not that software patents are inherently bad, but that the way they have been implemented has not worked out.”

    ^^^ That’s exactly how I feel. I think it’s possible to make both Tim (whom I did have lunch with today!) and Greg happy(er) if we could identify the truly terrible, obviously obvious software patents and get them revoked.

    It seems like an “open source lawyering” arrangement could be set up. Lots of free software type people donate a bunch of money and hire a few lawyers to just go ahead and unilaterally challenge the worst of the worst software patents (examples of which have been covered on this blog).

    I tend to suspect that a great deal of the problem with software patents is the unfamiliarity of the patent office with the software industry. That’s an education that needs to happen. Now, the slippery slope is that what is obvious today may not have been at the time it was granted, but from what I’ve seen of some of these patents, they were a) pretty obvious then and b) often software replicas of real world applications — i.e. you shouldn’t grant a patent for “software program with a play/rewind/pause for watching videos” because that scheme already exists physically with say, VCR’s.

  • Brian Moore

    Also, I’d note that:

    “His [Greg] main example is Vonage’s loss to Verizon, which a) won’t lead to any technology stifling, and b) is more an example of hiring incompetent litigators (the Verizon patents are pure crap if you hire a good searcher who hands his results off to good litigators).””

    But long cases, expensive (even if incompetent) lawyers and the judicial firepower to decide them are all exactly the kind of negatives that Tim’s talking about. That’s money that neither Vonage or Verizon (or the government) won’t be able to use to do actually useful things, such as innovation. There’s nothing that stifles innovation more than not having money because you spent lots of it fighting stupid patent cases that Greg himself claims are stupid.

  • http://www.pff.org Noel

    ***It seems like an “open source lawyering” arrangement could be set up. Lots of free software type people donate a bunch of money and hire a few lawyers to just go ahead and unilaterally challenge the worst of the worst software patents***

    Brian, I actually proposed this for FOSS firms in case the KSR decision went the other way around.

  • Brian Moore

    “Furthermore, these problems are not inherent in any patent system, but are peculiar to our system, because of problems with the way it is administered. Note that in Lee’s 1991 quote from Gates, Gates is concerned not that software patents are inherently bad, but that the way they have been implemented has not worked out.”

    ^^^ That’s exactly how I feel. I think it’s possible to make both Tim (whom I did have lunch with today!) and Greg happy(er) if we could identify the truly terrible, obviously obvious software patents and get them revoked.

    It seems like an “open source lawyering” arrangement could be set up. Lots of free software type people donate a bunch of money and hire a few lawyers to just go ahead and unilaterally challenge the worst of the worst software patents (examples of which have been covered on this blog).

    I tend to suspect that a great deal of the problem with software patents is the unfamiliarity of the patent office with the software industry. That’s an education that needs to happen. Now, the slippery slope is that what is obvious today may not have been at the time it was granted, but from what I’ve seen of some of these patents, they were a) pretty obvious then and b) often software replicas of real world applications — i.e. you shouldn’t grant a patent for “software program with a play/rewind/pause for watching videos” because that scheme already exists physically with say, VCR’s.

  • Brian Moore

    Also, I’d note that:

    “His [Greg] main example is Vonage’s loss to Verizon, which a) won’t lead to any technology stifling, and b) is more an example of hiring incompetent litigators (the Verizon patents are pure crap if you hire a good searcher who hands his results off to good litigators).””

    But long cases, expensive (even if incompetent) lawyers and the judicial firepower to decide them are all exactly the kind of negatives that Tim’s talking about. That’s money that neither Vonage or Verizon (or the government) won’t be able to use to do actually useful things, such as innovation. There’s nothing that stifles innovation more than not having money because you spent lots of it fighting stupid patent cases that Greg himself claims are stupid.

  • http://techdirt.com/ Mike Masnick

    I’d argue that Solveig seems to be confusing innovation with invention here.

    There is no evidence that going back would offer an improvement.

    Actually, that’s untrue. Look through the history and you can find plenty of evidence of how intellectual protectionism harms innovation.

    The evidence that software patents are harming innovation is weak or nonexistent.

    Again, that’s not supported by the research.

    Mostly, at the innovation stage, patents are ignored. Trolls are unlikely to target tiny players. It is later on, when the innovation is being put to use in implementing an ambitious business model, that problems show up.

    You are confusing innovation with invention. At the invention stage patents are mostly ignored. It’s only at the point of innovation that patent troubles come up.

    As for Greg’s point, I’d argue that innovation is occurring in spite of the patent system, not because of it.

  • http://www.pff.org Noel

    Actually Masnick, Kitch’s prospect theory (which I think you unknowingly criticize in most of your patent writings) proposed the patents be obtained early in the *invention* stage to facilitate the development of complementary *and* incremental technologies.

    As far as when patents are pertinent, in the invention v innovation stage, I’ll hold off from commenting here. The relation between invention and innovation is a bit more complex than where this discussion may lead. Prof. Bronwyn Hall has done some excellent work in the area, which I’ll review and write something on (Masnick, I’ll even send you a copy).

  • http://www.pff.org Noel

    ***It seems like an “open source lawyering” arrangement could be set up. Lots of free software type people donate a bunch of money and hire a few lawyers to just go ahead and unilaterally challenge the worst of the worst software patents***

    Brian, I actually proposed this for FOSS firms in case the KSR decision went the other way around.

  • http://techdirt.com/ Mike Masnick

    I’d argue that Solveig seems to be confusing innovation with invention here.

    There is no evidence that going back would offer an improvement.

    Actually, that’s untrue. Look through the history and you can find plenty of evidence of how intellectual protectionism harms innovation.

    The evidence that software patents are harming innovation is weak or nonexistent.

    Again, that’s not supported by the research.

    Mostly, at the innovation stage, patents are ignored. Trolls are unlikely to target tiny players. It is later on, when the innovation is being put to use in implementing an ambitious business model, that problems show up.

    You are confusing innovation with invention. At the invention stage patents are mostly ignored. It’s only at the point of innovation that patent troubles come up.

    As for Greg’s point, I’d argue that innovation is occurring in spite of the patent system, not because of it.

  • http://www.pff.org Noel

    Actually Masnick, Kitch’s prospect theory (which I think you unknowingly criticize in most of your patent writings) proposed the patents be obtained early in the *invention* stage to facilitate the development of complementary *and* incremental technologies.

    As far as when patents are pertinent, in the invention v innovation stage, I’ll hold off from commenting here. The relation between invention and innovation is a bit more complex than where this discussion may lead. Prof. Bronwyn Hall has done some excellent work in the area, which I’ll review and write something on (Masnick, I’ll even send you a copy).

  • angry dude

    Holy shit…

    Are you all idiots here or what ?

    What kind of weed do you smoke every day ?

    Just read this FAQ about so-called “software patents” to clear your brains:

    http://www.ipjur.com/01.php3

    And if you don’t like patents and patent holders in general (I know Mike hates them all) just say it loud and clear.

  • angry dude

    Holy shit…

    Are you all idiots here or what ?

    What kind of weed do you smoke every day ?

    Just read this FAQ about so-called “software patents” to clear your brains:

    http://www.ipjur.com/01.php3

    And if you don’t like patents and patent holders in general (I know Mike hates them all) just say it loud and clear.

  • AK

    Angry dude, the answers in that faq are either incompetent or dishonest. The very fact that the EU is discussing software patents right now disproves its claims.

  • AK

    Angry dude, the answers in that faq are either incompetent or dishonest. The very fact that the EU is discussing software patents right now disproves its claims.

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