No Evidence?

by on June 12, 2007 · 32 comments

One other point about the purported “lack of evidence” that software patents harm innovation. I’m probably more sensitive to this type of argument than most because I’m also working on a paper on eminent domain abuse, and you sometimes see precisely the same style of argument in that context. People will argue “sure, eminent domain sometimes screws over individual landowners, but there’s no evidence that it harms the economy as a whole.”

There are two problems with this sort of argument. First, as I said before, it’s not obvious what “empirical evidence” would look like. Eminent domain abuse occurs in almost every state in the union, and it would be extremely hard to set up a good controlled experiment.

But the more fundamental point is that individual examples of injustice are themselves evidence that something is wrong. When city governments steal peoples’ land to make room for a shopping center, that is, in and of itself, evidence that eminent domain abuse is harmful. If we can pile up enough examples of such abuse, that’s evidence that the system is causing harm even if the harm doesn’t show up in national GDP statistics.

Similarly, I don’t think anyone would seriously claim that what happened to RIM, or what’s happening to Vonage, is just. So those are two data points in support of the thesis that the software patent system is screwed up. Here are 26 more. When you’re talking about issues like this that aren’t susceptible to clear-cut quantitative measurements, the plural of anecdote really is data—especially when the anecdotes are so lopsidedly in one direction.

  • http://www.pff.org Noel

    ***So those are two data points in support of the thesis that the software patent system is screwed up. Here are 26 more.***

    Tim, why do you always link to your patent of the week series, where you develop your own standard of patent obviousness while decrying the rise in patent lawyers?

  • http://www.codemonkeyramblings.com MikeT

    The bottom line there is that you cannot set up a controlled experiment and reproduce the results reliably. Some people might be totally ruined by that abuse, others might not be.

  • http://www.pff.org Noel

    ***So those are two data points in support of the thesis that the software patent system is screwed up. Here are 26 more.***

    Tim, why do you always link to your patent of the week series, where you develop your own standard of patent obviousness while decrying the rise in patent lawyers?

  • http://www.pff.org Noel

    Apologies for the double-post, I put this in the wrote blog.

    …for pro-software patents arguments, go to IPcentral and read some write-ups of Profs Merges, Lemley, Teece, Mann, Moser, Allison, Cockburn, Moore and others I’ve done. Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

    I like how Tim has turned more and more to ideological arguments in his string of patent posts today…

  • http://www.codemonkeyramblings.com MikeT

    The bottom line there is that you cannot set up a controlled experiment and reproduce the results reliably. Some people might be totally ruined by that abuse, others might not be.

  • Doug Lay

    Noel:

    How many of those professors are professors of computer science or engineering?

  • http://www.pff.org Noel

    Apologies for the double-post, I put this in the wrote blog.

    …for pro-software patents arguments, go to IPcentral and read some write-ups of Profs Merges, Lemley, Teece, Mann, Moser, Allison, Cockburn, Moore and others I’ve done. Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

    I like how Tim has turned more and more to ideological arguments in his string of patent posts today…

  • http://www.pff.org Noel

    Oh, I forgot. Lee Hollar has done some excellent work on IPRs, he’s a comp-sci prof.

  • Doug Lay

    Noel:

    How many of those professors are professors of computer science or engineering?

  • http://www.pff.org Noel

    Oh, I forgot. Lee Hollar has done some excellent work on IPRs, he’s a comp-sci prof.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Another fundamental point is this:

    While it may be true that some particular players may benefit from a particular law, and it may even be the case that everyone benefits to some measurable degree, it is still a very fair question to ask if this scheme is the BEST SCHEME POSSIBLE.

    You are quite right about being skeptical, therefore when someone demands specific proof that someone is being harmed; that is not required. All that Tim needs is a better scheme.

    Any scheme that deprives someone of freedom (whether to innovate or to hold his/her property without threat) has a particularly high hurdle, as elemental freedoms must be placed in a preferred position, vis a vis expected economic gains, as procedural freedoms (eg. freedom of speech) are essential to our maintaining our substantive freedoms (eg freedom from involuntary starvation).

  • http://techdirt.com/ Mike Masnick

    Noel writes:

    Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

    But then ignores the research of plenty of others that suggests the exact opposite of what he’s saying and supports Tim’s point of view. In fact, I’d argue that Moser’s work is more towards Tim’s side of things than Noel’s… And I won’t startup the argument over Lemley’s work again, other than to say that I still believe Noel is misreading some of it.

  • Doug Lay

    Hollaar has bona fide credentials as a technologist. But the stuff I’ve read by him on the subject of IP is pretty unimpressive. Certainly his recent paper for IPI that attacked Tim’s paper and the EFF’s work on the DMCA was (a) “anecdotal” at best; unsubstantiated is more like it; and (b) an admission that most of Hollaar’s fellow technologists do not align with his pro-content-industry views. So I rather suspect Hollaar, in his views on IP, is an outlier among technologists; somewhat like our sometime commenter Richard Bennett.

    I have no idea whether, given the oportunity, a majority of computer scientists and engineers would vote to eliminate software patents. But it would be nice if we had more of a say in the matter. The lawyers (and VCs, and others) have sure made a mess of the system.

  • http://weblog.ipcentral.info/ Noel

    Masnick, Tim asked for evidence supporting software patents and I pointed him in a direction where he could find some.

    I can’t believe Tim just wrote a blog dismissing economic evidence on innovation and patents. He’d rather give anecdotal evidence than look at empirical analysis, and would rather analyze one patent than a dataset of thousands of them. That’s fine if its Tim’s approach, but it makes it odd to present generally accepted forms of evidence to him, as he won’t listen.

    In any case Masnick, there are good arguments against software patents, notably one of the most talented scholars I’m aware of- but why should I tell you Masnick, I don’t work for free:)

    Re/ Moser. She has made several arguments supportive of what I see as valuable in the patent system: 1) patent facilitate the diffusion of innovation and knowledge exchange, 2) patents will draw innovation efforts towards industries where they are available. As far as Moser’s *non-supportive* arguments, you have to remember that she is an empirical researcher. I would be surprised if Moser *did not* find negative effects of patents.

    No academic I’m aware of, even those I cite most often as supportive of software patents, likes software patents unconditionally.

    As far as Lemley is concerned, Masnick, I’m not sure why you thought I was arguing that he opposed an independent invention defense for patents. Why would I do this when *I* support a limited independent invention defense. Of Lemley, I wrote:

    Lemley does not entirely downplay the potential value of an independent invention defense. In fact, he finds that such an addition to patent doctrine can be valuable to innovation in the technology industries, but reform must be approached cautiously in order to avoid debilitating effects.

  • http://enigmafoundry.wordpress.com eee_eff

    Another fundamental point is this:

    While it may be true that some particular players may benefit from a particular law, and it may even be the case that everyone benefits to some measurable degree, it is still a very fair question to ask if this scheme is the BEST SCHEME POSSIBLE.

    You are quite right about being skeptical, therefore when someone demands specific proof that someone is being harmed; that is not required. All that Tim needs is a better scheme.

    Any scheme that deprives someone of freedom (whether to innovate or to hold his/her property without threat) has a particularly high hurdle, as elemental freedoms must be placed in a preferred position, vis a vis expected economic gains, as procedural freedoms (eg. freedom of speech) are essential to our maintaining our substantive freedoms (eg freedom from involuntary starvation).

  • http://techdirt.com/ Mike Masnick

    Noel writes:

    Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

    But then ignores the research of plenty of others that suggests the exact opposite of what he’s saying and supports Tim’s point of view. In fact, I’d argue that Moser’s work is more towards Tim’s side of things than Noel’s… And I won’t startup the argument over Lemley’s work again, other than to say that I still believe Noel is misreading some of it.

  • http://www.blogger.com/profile/14019452 Steve R.

    I believe that we can develop “evidence” through economic modeling. If new technologies are easily available they will quickly diffuse through society adding a degree of marginal improvement to the economy. I think this increment can be measured.

    In the case of a “strong” patent scenario, those licensing the technology would funnel money to the patent holder for the licensing rights. This adds a “tax” to products sold, which may have the effect of reducing sales by making the product slightly more expensive. We may be able to measure this reduction of economic activity.

    Further, we would also need to ask the question of whether the patent holder is able to successful reinvest the licensing revenue by creating new technologies. If not, then we have an economic dead weight.

    Additionally, the cost (in terms of economic grow) of all the lawsuits would have to be factored into both scenarios.

    For an enterprising doctoral student, this would be a good and interesting thesis.

  • Doug Lay

    Hollaar has bona fide credentials as a technologist. But the stuff I’ve read by him on the subject of IP is pretty unimpressive. Certainly his recent paper for IPI that attacked Tim’s paper and the EFF’s work on the DMCA was (a) “anecdotal” at best; unsubstantiated is more like it; and (b) an admission that most of Hollaar’s fellow technologists do not align with his pro-content-industry views. So I rather suspect Hollaar, in his views on IP, is an outlier among technologists; somewhat like our sometime commenter Richard Bennett.

    I have no idea whether, given the oportunity, a majority of computer scientists and engineers would vote to eliminate software patents. But it would be nice if we had more of a say in the matter. The lawyers (and VCs, and others) have sure made a mess of the system.

  • http://weblog.ipcentral.info/ Noel

    Masnick, Tim asked for evidence supporting software patents and I pointed him in a direction where he could find some.

    I can’t believe Tim just wrote a blog dismissing economic evidence on innovation and patents. He’d rather give anecdotal evidence than look at empirical analysis, and would rather analyze one patent than a dataset of thousands of them. That’s fine if its Tim’s approach, but it makes it odd to present generally accepted forms of evidence to him, as he won’t listen.

    In any case Masnick, there are good arguments against software patents, notably one of the most talented scholars I’m aware of- but why should I tell you Masnick, I don’t work for free:)

    Re/ Moser. She has made several arguments supportive of what I see as valuable in the patent system: 1) patent facilitate the diffusion of innovation and knowledge exchange, 2) patents will draw innovation efforts towards industries where they are available. As far as Moser’s *non-supportive* arguments, you have to remember that she is an empirical researcher. I would be surprised if Moser *did not* find negative effects of patents.

    No academic I’m aware of, even those I cite most often as supportive of software patents, likes software patents unconditionally.

    As far as Lemley is concerned, Masnick, I’m not sure why you thought I was arguing that he opposed an independent invention defense for patents. Why would I do this when *I* support a limited independent invention defense. Of Lemley, I wrote:

    Lemley does not entirely downplay the potential value of an independent invention defense. In fact, he finds that such an addition to patent doctrine can be valuable to innovation in the technology industries, but reform must be approached cautiously in order to avoid debilitating effects.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I believe that we can develop “evidence” through economic modeling. If new technologies are easily available they will quickly diffuse through society adding a degree of marginal improvement to the economy. I think this increment can be measured.

    In the case of a “strong” patent scenario, those licensing the technology would funnel money to the patent holder for the licensing rights. This adds a “tax” to products sold, which may have the effect of reducing sales by making the product slightly more expensive. We may be able to measure this reduction of economic activity.

    Further, we would also need to ask the question of whether the patent holder is able to successful reinvest the licensing revenue by creating new technologies. If not, then we have an economic dead weight.

    Additionally, the cost (in terms of economic grow) of all the lawsuits would have to be factored into both scenarios.

    For an enterprising doctoral student, this would be a good and interesting thesis.

  • angry dude

    Read this FAQ, pleeeeeze….

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

    There are no “software patents” per se…

    You don’t f****** know what you are talking about !!! Mike certainly doesn’t.
    YOu don’t like patents in general ?
    Fine, write to your congressional representatives…. castrate all american inventors… hell with those bloodsuckers…
    Get rid of them
    VC-funded high-tech startups will follow shortly.

  • angry dude

    Read this FAQ, pleeeeeze….

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

    There are no “software patents” per se…

    You don’t f****** know what you are talking about !!! Mike certainly doesn’t.
    YOu don’t like patents in general ?
    Fine, write to your congressional representatives…. castrate all american inventors… hell with those bloodsuckers…
    Get rid of them
    VC-funded high-tech startups will follow shortly.

  • http://techdirt.com/ Mike Masnick

    I have to say that I’m fascinated by angry dude’s persistence in reposting that URL to every blog he can find about patents, even though it doesn’t say anything even remotely compelling. Some of it is well known. Some of it is wrong. This has been pointed out to him, but he won’t stop posting the URL.

  • http://techdirt.com/ Mike Masnick

    I have to say that I’m fascinated by angry dude’s persistence in reposting that URL to every blog he can find about patents, even though it doesn’t say anything even remotely compelling. Some of it is well known. Some of it is wrong. This has been pointed out to him, but he won’t stop posting the URL.

  • Doug Lay

    I think “angry dude” is the same guy who comments frequently on the patentlyo blog under the name “small inventor” among other pseudonyms. He’s quite amusing – believes passionately that the Supreme Court’s unanimous decision in Ebay vs. MercExchange was unconstitutional despite the fact that it’s the Supreme Court who decide what’s constitutional and what isn’t.

    I’m a little more ambivalent about software patents than Tim is. If asked to vote on them now, I would oppose them, but that’s partly because I think the overall patent system is so FUBARed. The Supreme Court’s surprisingly enlightened recent 9-0 decisions in Ebay vs. MercExchange and KSR vs. Teleflex offer real potential to correct the worst problems with the overall patent system. However, there are still a LOT of lower-court judges and bureaucrats who, damaged by the misguided metaphor of “intellectual property”, still have a bias toward patent applicants, patent holders and patent plaintiffs.

    Segregation didn’t just up and disappear after Brown vs. Board of Education, and the patent system isn’t going to just up and fix itself after the Supreme Court’s two excellent decisions.

  • angry dude

    “despite the fact that it’s the Supreme Court who decide what’s constitutional and what isn’t”

    The Founding Fathers are rolling over in their graves…

    God bless this country

  • Doug Lay

    I think “angry dude” is the same guy who comments frequently on the patentlyo blog under the name “small inventor” among other pseudonyms. He’s quite amusing – believes passionately that the Supreme Court’s unanimous decision in Ebay vs. MercExchange was unconstitutional despite the fact that it’s the Supreme Court who decide what’s constitutional and what isn’t.

    I’m a little more ambivalent about software patents than Tim is. If asked to vote on them now, I would oppose them, but that’s partly because I think the overall patent system is so FUBARed. The Supreme Court’s surprisingly enlightened recent 9-0 decisions in Ebay vs. MercExchange and KSR vs. Teleflex offer real potential to correct the worst problems with the overall patent system. However, there are still a LOT of lower-court judges and bureaucrats who, damaged by the misguided metaphor of “intellectual property”, still have a bias toward patent applicants, patent holders and patent plaintiffs.

    Segregation didn’t just up and disappear after Brown vs. Board of Education, and the patent system isn’t going to just up and fix itself after the Supreme Court’s two excellent decisions.

  • angry dude

    “despite the fact that it’s the Supreme Court who decide what’s constitutional and what isn’t”

    The Founding Fathers are rolling over in their graves…

    God bless this country

  • http://www.codemonkeyramblings.com MikeT

    That is the only intelligent thing angry dude has contributed so far. The only things you need to be able to determine whether or not something is constitutional are a copy of the constitution, a copy of the bill/law and a brain that can read for comprehension.

  • http://www.codemonkeyramblings.com MikeT

    That is the only intelligent thing angry dude has contributed so far. The only things you need to be able to determine whether or not something is constitutional are a copy of the constitution, a copy of the bill/law and a brain that can read for comprehension.

  • Doug Lay

    MikeT:

    Sure, we can all decide for ourselves what we *think* is constitutional. But are the nation’s courts and government agents bound by our opinions? No. Are they bound by the Supreme Court’s? Yes.

  • Doug Lay

    MikeT:

    Sure, we can all decide for ourselves what we *think* is constitutional. But are the nation’s courts and government agents bound by our opinions? No. Are they bound by the Supreme Court’s? Yes.

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