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
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.