Google and Patents Again

You might not know it from my frequent ranting about the DMCA and software patents, but generally speaking I’m actually pro-copyright and pro-patent. There are, in fact, some good arguments for both copyright and patent law. (Although I wish people would stop lumping two very different legal regimes under the misleading heading of intellectual property)

But this article from CNet’s Michael Kanellos is full of cringe-worthy (and in some cases unintentionally hilarious) arguments for “intellectual property.” In fact, in a number of places, the arguments wind up coming across as unintentionally hilarious.

Intellectual property provides one of the most dependable means toward wealth and independence in the world today. In the Dark Ages, one could obtain wealth by raising an army and burning someone else’s kingdom to the ground. In the Gilded Age, those on the fast track had a secret weapon of success: they bribed state legislators to obtain canal and railroad contracts. Unfortunately, those career options just aren’t as viable as they once were. Instead, we have to invent stuff, and thus people should get compensated for the effort.

Boy, things sure have changed. Nowadays, people never making a living by lobbying for special favors from the government. I’m sure Hollywood and the recording industry spend millions of dollars every year on lobbyists and campaign contributions out of an altruistic regard for the public interest.

But wait, it gets better!

And it does take effort. Think of Larry Page toiling away on the early PageRank patents.

Larry Page’s PageRank patents? There are lots and lots of companies that benefit from patents. Merck, IBM, and Verizon come to mind. But it’s hard to think of a company whose business model is lessreliant on patents than Google.

Google exists in a very competitive business. In the last three years, Microsoft and Yahoo have poured millions of dollars into their search technologies in a mad dash to catch up to Google. I’ve read a significant amount of prognostication about the competitive dynamic among Microsoft, Yahoo, and Google. Yet I don’t think I’ve ever read a single column on the competition among Google, Yahoo, and Microsoft for the search engine market that even mentions Google’s patents.

And in fact, I have trouble imagining how Google’s trajectory would have been any different in the absence of patents (aside from them having to defend themselves from patent trolls.) Google’s primary asset is their ability to rapidly improve their products, combined with their ability to keep the implementation details of their technologies secret. Even if some Google mole managed to get detailed blueprints of Google’s facilities and a copy of all the relevant source code, it will still take a competitor’s engineers months, if not years, to figure out how it all works, acquire the relevant custom hardware, and figure out how to configure and install the software on it. And by the time they’d done that (and worked out the inevitable kinks that come with running a new piece of software) Google would be a year or two ahead with a new version of their software that was better than what the mole had stolen.

I’ve criticized the claim that patents were essential to Google’s success before, and I have yet to see anyone make a plausible argument for the contention. Patents don’t appear to have had any important role, positive or negative, on Google’s success. So why do people keep citing it?

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