good stuff on patents

[phil swenson]

http://www.bgr.com/2012/06/08/apple-motorola-patent-case-judge-dismisses-with-prejudice/


Judge Richard Posner, one of the most distinguished legal minds in the
United States, sounds absolutely fed up with Apple and Motorola
Mobility for wasting his time with their patent suits. In fact, Posner
was apparently so perturbed with the arguments from both companies
that he said their cases should be dismissed with prejudice, meaning
they cannot be brought before a court again. Per GigaOm, Posner also
tore into Apple and Motorola’s reasoning and was particularly incensed
by Apple’s argument that unlocking a device with a finger tap
infringed upon patented swipe-to-unlock technology because “a tap is a
zero length swipe.” “That’s silly,” Posner replied. “It’s like saying
that a point is a zero-length line.” Posner also recently posted a
rant on his personal blog about the general failures of modern
American institutions, including a patent system that he described as
“dysfunctional.”

[Fabrizio Giudici]

On Fri, 08 Jun 2012 22:08:24 +0200, phil swenson <phil.s...@gmail.com>
wrote:

So, does it seem that there's some chance that the legal system can
regulate itself?


--
Fabrizio Giudici - Java Architect, Project Manager
Tidalwave s.a.s. - "We make Java work. Everywhere."
fabrizio...@tidalwave.it
http://tidalwave.it - http://fabriziogiudici.it

[Cédric Beust ♔]

On Fri, Jun 8, 2012 at 1:23 PM, Fabrizio Giudici <Fabrizio...@tidalwave.it> wrote:

So, does it seem that there's some chance that the legal system can regulate itself?

Like I've been saying for quite a while, it's been regulating itself for quite a while because

1) Software innovation seems to be blooming in the US

2) Yes, trash patents get awarded all the time, but the number of them that lead to outrageous verdicts compared to the number of them that don't even make it to court is vanishingly small

The simple fact that Android happened at all is a good example that the system seems to be working just fine (it could use some tuning, though, as we discussed over and over again on this list a few months ago, so I won't go over this again).

-- 

Cédric

[phil swenson]

I think this bit of goodness is the exception, not the rule.
Look at all the patent trolling going on (Lodsys). Look at the
monster patent portfolios being built (Google, Apple, Oracle,
Microsoft, Nortel consortium) to attack and defend.

At the very least, patent durations are crazy long for software.
14-20 years depending on circumstances. Amazon's 1 click patent was
filed in 1997, expires in 2017. Is that sane in any way? Firstly,
that it was awarded in the first place. Secondly - 20 years in
software?

Oh and I love the latest "tweak" to the patent system. First to file
instead of First to Invent?
http://www.marketwatch.com/story/us-patent-system-to-transform-from-first-to-invent-to-first-to-file-avi-biopharma-and-xoma-look-to-benefit-2012-05-04

Patent system rewards the big and the rich, not the independents. The
rich/big co's are the only ones who have the money to file and defend.

It's a fact that almost every software company violates many patents.
You just don't know it because you'd have to spend tons of time
researching them + there are tons of ridiculous/obvious patents that
you can't help but violate + the act of researching patents makes you
more liable because you "know" about breaking them.

whole system is junk!

i enjoyed these podcast episodes where the host (John Siracusa
eviscerates the patent system):
http://5by5.tv/hypercritical/67
http://5by5.tv/hypercritical/68
I enjoy almost all the episodes, good podcast if you can handle him
spending 50% of the time on Apple stuff.

I forget which one hit the patents harder, probably #67

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[Cédric Beust ♔]

On Fri, Jun 8, 2012 at 4:27 PM, phil swenson <phil.s...@gmail.com> wrote:

I think this bit of goodness is the exception, not the rule.
Look at all the patent trolling going on (Lodsys).  Look at the
monster patent portfolios being built (Google, Apple, Oracle,
Microsoft, Nortel consortium) to attack and defend.

At the very least, patent durations are crazy long for software.
14-20 years depending on circumstances.

Definitely, that's one of the things I said in the previous discussions.

 

 Amazon's 1 click patent was
filed in 1997, expires in 2017.  Is that sane in any way?  Firstly,
that it was awarded in the first place.  Secondly - 20 years in
software?

How many times has Amazon made money off this patent from a big court case? Never. How many web sites have a one click purchase link? A lot.

 

Oh and I love the latest "tweak" to the patent system.  First to file
instead of First to Invent?
http://www.marketwatch.com/story/us-patent-system-to-transform-from-first-to-invent-to-first-to-file-avi-biopharma-and-xoma-look-to-benefit-2012-05-04

Patent system rewards the big and the rich, not the independents.

Many startups get sold for a lot of money in part thanks to their patent portfolios, so it's not just for the big and rich. I would argue that without patents, you would see a lot less startups being acquired and a company like TiVo might never had emerged and be successful despite its original and disrupting ideas.

 

 The
rich/big co's are the only ones who have the money to file and defend.

It's a fact that almost every software company violates many patents.
You just don't know it because you'd have to spend tons of time
researching them + there are tons of ridiculous/obvious patents that
you can't help but violate + the act of researching patents makes you
more liable because you "know" about breaking them.

Exactly, all this dark matter ("you don't know how many patents you violate", "look at the portfolio that big companies are amassing", "look at all these trash patents getting filed") says *nothing* about the system.

Here are a few criteria by which to measure how well the system works:

• How much innovation is happening in the US (a lot).
• How much innovation is happening in countries that have none of these laws such as China (none).
• How many of these patents actually end up in court (hardly any).
• How many of these patents that actually land in court end up with an outrageous verdict (can't even think of one).

Anyway, we've had this discussion here many, many times, no point in rehashing it.

-- 

Cédric

[Casper Bang]

Here are a few criteria by which to measure how well the system works:

• How much innovation is happening in the US (a lot).
• How much innovation is happening in countries that have none of these laws such as China (none).

I'd like to challenge those rather absolute bullet-points; as I believe the innovation of the US doesn't come from patents, but from the ease of which venture capital can be raised and then of course the H-1B visa. Patents are primarily being used to block challengers (corporate arms race) and keep entrepreneurship at bay (due to prohibitive costs).

How do you arrive at the conclusion that there's no innovation in China? Have you been following what's been going on in China for the last decade? The economy will become the biggest in the world very soon, and keeps owning more and more of the US (currently 16.7% of the US' insane debt). Is it not simply the case that you don't see the innovation because you are not there? Much like, those of us in the west, don't realize that the ratio between English and Chinese language use on the Internet is almost on parity. Given that 50% of Ph.d. candidates in the US are foreign born, it should scare a lot of politicians to extrapolate what will happen as more and more of these start to go back home again.

[Fabrizio Giudici]

On Sun, 10 Jun 2012 18:58:20 +0200, Casper Bang <caspe...@gmail.com>
wrote:

> How do you arrive at the conclusion that there's no innovation in China?
> Have you been following what's been going on in China for the last
> decade?
> The economy will become the biggest in the world very soon, and keeps
> owning more and more of the US (currently 16.7% of the US' insane debt).
> Is
> it not simply the case that you don't see the innovation because you are
> not there? Much like, those of us in the west, don't realize that the
> ratio
> between English and Chinese language use on the Internet is almost on
> parity. Given that 50% of Ph.d. candidates in the US are foreign born, it
> should scare a lot of politicians to extrapolate what will happen as more
> and more of these start to go back home again.

The point about China is much more complex. On one side, they are growing
a lot, as Casper said. On the other side, growth in a scenario such as the
chinese one does not only happen because of innovation, but also because
of the low labour cost, segments such as house building and so on.

But it's not true that China is doing zero innovation, because we've
started to see innovative products made in China.

As a final point, China is also making money by copying others' products
and brands, in spite of patents, copyright and trademarks... So, what can
we draw out of all these points?

[Kevin Wright]

Here are a few criteria by which to measure how well the system works:

• How much innovation is happening in the US (a lot).
• How much innovation is happening in countries that have none of these laws such as China (none).

If I claimed that the weedkiller I put down last year helps plant growth, and pointed out that there's now moss growing on my back patio whereas the at out the front of my house is completely free of plant life - then you'd laugh me out of the room.

Perhaps the moss is growing in spite of the weedkiller, and there'd be even more plants without it.  Perhaps there are completely different factors affecting the vegetation-impoverished road.

[Kevin Wright]

Bah! Hit send too soon: "... whereas the road out the front of my house ..."

[phil swenson]

http://arstechnica.com/tech-policy/2012/06/app-store-enigma-the-patent-holder-the-developer-and-the-voiceless-child/

Good example of the harm from software patents.

[Joe Attardi]

Great link, Phil. This is a fantastic example of the evils of software patents.

I grew up with a brother with autism, and I can speak firsthand about the ridiculous prices of these standalone devices. Having affordable alternatives like this will help lots of families.

> javaposse+unsubscribe@googlegroups.com.

[Morten A-Gott]

On Jun 9, 1:43 am, Cédric Beust ♔ <ced...@beust.com> wrote:
> Here are a few criteria by which to measure how well the system works:
>

>    - How much innovation is happening in the US (a lot).
>    - How much innovation is happening in countries that have none of these

>    laws such as China (none).

>    - How many of these patents actually end up in court (hardly any).
>    - How many of these patents that actually land in court end up with an

>    outrageous verdict (can't even think of one).

Now you are just trolling. That retoric is at a level that wouldn't
even fly in a high school essay.
http://en.wikipedia.org/wiki/Correlation_does_not_imply_causation

[Cédric Beust ♔]

This is not about causation and correlation but about burden of proof. Please read the past discussions on the subject.

-- 

Cédric

[Morten A-Gott]

On Jun 18, 5:03 pm, Cédric Beust ♔ <ced...@beust.com> wrote:

> > Now you are just trolling. That retoric is at a level that wouldn't
> > even fly in a high school essay.
> >http://en.wikipedia.org/wiki/Correlation_does_not_imply_causation
>
> This is not about causation and correlation but about burden of proof.
> Please read the past discussions on the subject.

Yes it is. You only present casual correlations, no evidence/proof.
Also, the "how many end up in court"-argument actually goes both ways,
as it may also be an indication of how many can afford to challenge
patents. This especially harms "the little guy" and startups. They
have no chance, Drew Curtis explains this quite well
http://www.ted.com/talks/drew_curtis_how_i_beat_a_patent_troll.html

The question of innovation and patents should be answered using
academic standards, not courtroom standards.

I'll stop feeding now though.

[Oscar Hsieh]

There is no need to be rude.  Cedric is a regular here and I am sure most people don't consider him a troll.

Use the wikipedia link you provided.  Correlation does not imply causation but correlation can be a "hint" and thus provide reason to do further research.

The original intent of Patent is to promote innovation by encouraging people sharing their "secret recipe" without losing the benefit of being the first.  I don't think anyone can deny that the Patent system worked pretty well past.  It only becomes a problem when it applies to Software since software evolves a lot faster.  

Anyway, enough had said on this topic by others in this forum.  I do believe that by now most people already have strong believe one way or the other (abolish vs fix software patent) so it is rather pointless to argue here.  

[Ralph Goers]

On this topic he is indeed trolling.  Notice how the "burden of proof" is always on everyone else. He has been presented with tons of evidence that shows the harm but hand-waves it all off as not relevant because it doesn't prove the only point he considers to matter and casually dismisses what everyone else thinks is significant. Repeating his "innovation" crap again without proving that innovation is due to patents rather than in spite of them is indeed trolling.

Ralph

[Cédric Beust ♔]

On Mon, Jun 18, 2012 at 9:16 PM, Ralph Goers <ralph...@gmail.com> wrote:

On this topic he is indeed trolling.

Please look up the definition of trolling. Hint: it's not "saying something I don't agree with".

 

He has been presented with tons of evidence that shows the harm but hand-waves it all off

I certainly didn't hand wave it off, I presented evidence that the current system is certainly creating a healthy amount of innovation as well. If you want to prove your point, you need to build a case explaining why your ideas will not make these positive effects disappear as well.

It's not as simple as it looks, and it's sad that the anti-patent discussion has turned into more of a circle jerk than a discussion based on civilized discourse.

-- 

Cédric

[Ricky Clarkson]

I think it's best to stick to the facts. One is that if you develop
virtually any piece of software there's probably a patent out there
that you're violating, and you cannot always tell which one it is in
advance in order to arrange licencing.

This only really matters when you get big enough to be noticed, of
course, but having that risk over a startup's head seems a bad idea.

A couple of solutions:

1. Better filtering at the US Patent Office. I shouldn't be able to
patent a device I haven't built a prototype for and have demonstrable
unique market research for. The patent should not stand if after a
year there is no product on the market selling in reasonable numbers.

2. A certified legal service that conducts patent searches, limiting
future claims of patent violation and hopefully reducing actual
violation. I.e., if you invent a device that allows you to smell the
words you're typing, get a certified patent search done, and then
SmellOKeys, Inc. come along and say they have a prior patent the
damages would be limited to $10,000 or 1% of your revenue, whichever
is larger. The suing company would be able to claim a limited amount
against the state, which would give the state incentive to keep its
certified vendors honest.

[Morten A-Gott]

Personally I'd rather change the system to disallow patents of mundane
"inventions", which typically is just prior art on a new platform. The
level of some of the patents granted in software and mobile space
would never be granted in areas like mechanical engineering etc. I've
always felt the problem is that software is too abstract for the
patent office to comprehend.

“Patents: If people had understood how patents would be granted when
most of today’s ideas were invented, and had taken out patents, the
industry would be at a complete standstill today.”
—Bill Gates

[Morten A-Gott]

On Jun 19, 5:00 am, Oscar Hsieh <zen...@gmail.com> wrote:
> There is no need to be rude.  Cedric is a regular here and I am sure most
> people don't consider him a troll.

I said he was trolling, not a troll.

>
> Use the wikipedia link you provided.  Correlation does not imply causation
> but correlation can be a "hint" and thus provide reason to do further
> research.

Yeah, that's what I was getting at. It may be considered "inspiration"
for research, but not proof of a theory. That is if you apply academic
requirements and not populist rhetoric. In fact, much academic
research starts out with some observed correlation peeking a
researcher's interest, leading to a study aimed to reveal wether there
is a causation. In Cedric's post it was presented as causation though.

> Anyway, enough had said on this topic by others in this forum.  I do
> believe that by now most people already have strong believe one way or the
> other (abolish vs fix software patent) so it is rather pointless to argue
> here.

If only it was that simple. Unfortunately, software patents apply (in
the US) both to those that agree with them and those who don't. As
long as they do, we have to debate them or they won't change.

[Morten A-Gott]

On Jun 19, 6:31 am, Cédric Beust ♔ <ced...@beust.com> wrote:
> I certainly didn't hand wave it off, I presented evidence that the current
> system is certainly creating a healthy amount of innovation as well. If you
> want to prove your point, you need to build a case explaining why your
> ideas will not make these positive effects disappear as well.

That's where I disagree, you didn't present evidence, you connected
two pieces of information as if there was a causation. As other posts
pointed out, there are probably better explanations than patents
explaining why the US is perceived as (I don't know enough about the
US or Chinas true innovations to conclude that this is a correct
statement either) more innovative than China.

[Russel Winder]

On Mon, 2012-06-18 at 23:00 -0400, Oscar Hsieh wrote:
[…]

> The original intent of Patent is to promote innovation by encouraging
> people sharing their "secret recipe" without losing the benefit of being
> the first. I don't think anyone can deny that the Patent system worked
> pretty well past. It only becomes a problem when it applies to Software
> since software evolves a lot faster.

I do not think patents have worked as well as people are making out,
even ignoring the knotty issue of software and business patents. cf.
drug companies, mobile network operators. The words "cartel" and "stitch
up" spring to mind.

The only positive aspect of patents is to allow someone with an
invention but no resources to exploit that invention, to make details
public so that organizations with the resources to exploit the invention
can do so, and the original inventor obtains a royalty.

Everything else about the patent system is broken to some extent one way
or another. And Cédric there is plenty of proof out there, just look at
the list of legal cases about patents in the UK, Australian, and other
courts as well as the USA ones: there are at least as many proving the
"broken" case as there are proving the "working" case. If we had money
to resource the search, I would create a list of authorities.

More generally: nasty big companies pick up patents, exploit them, fail
to pay royalties and then when the patent holder asks for royalties, the
company says "sue us". Little players simply do not have the resources
to enforce patents. So it relies on the big organizations playing fair.
Which rarely happens. We know this happens we have all been there, but
there is little written evidence that can be provided.

The idea that the patent belongs to the original inventor is being
challenged by having a "first to file" rule. This simply undermines the
whole point of supporting the inventor since big companies hear of a new
idea and simply file before the original inventor has a chance and,
because of the very nature of patent applications, the original inventor
has no chance of showing prior art. If "first to file" is taken up then
you know the patent system has just been hijacked by the big companies.

In the end patents have become a game played only by organizations with
significant resources as marketing and business tools. Simply look at
the way the mobile phone companies are operating to try and stop
competition. This is what patents are about now, nothing to do with the
small guy.

New inventions are now best handled by commercial secrecy, NDAs, and
actually getting to market. OK, possibly get a patent along the way for
more security once the product is released.

--
Russel.
=============================================================================
Dr Russel Winder t: +44 20 7585 2200 voip: sip:russel...@ekiga.net
41 Buckmaster Road m: +44 7770 465 077 xmpp: rus...@winder.org.uk
London SW11 1EN, UK w: www.russel.org.uk skype: russel_winder

[Russel Winder]

On Tue, 2012-06-19 at 01:36 -0300, Ricky Clarkson wrote:
> I think it's best to stick to the facts. One is that if you develop
> virtually any piece of software there's probably a patent out there
> that you're violating, and you cannot always tell which one it is in
> advance in order to arrange licencing.

And remember, lack of knowledge is no defence. You can violate a patent
without knowing it unless you sift through all currently active patents.

> This only really matters when you get big enough to be noticed, of
> course, but having that risk over a startup's head seems a bad idea.
>
> A couple of solutions:
>
> 1. Better filtering at the US Patent Office. I shouldn't be able to
> patent a device I haven't built a prototype for and have demonstrable
> unique market research for. The patent should not stand if after a
> year there is no product on the market selling in reasonable numbers.

The USPTO appears to do no research on patents. If the documentation is
well formed then the patent is granted. At least in the UK there are
searches done for prior art, and assessments of "obviousness" by
referees. The difference is emphasis. The UK IPO wants patents to be
strong and to stand up to scrutiny. The USPTO delegates that to the
courts. Both a workable systems in principle, but the USA system is more
open to being "gamed".

I agree a prototype would be a good requirement. I am not sure proving a
market should be a requirement. After all who would have predicted
non-stick pans from building space rockets. Markets need to be left as
emergent properties.

> 2. A certified legal service that conducts patent searches, limiting
> future claims of patent violation and hopefully reducing actual
> violation. I.e., if you invent a device that allows you to smell the
> words you're typing, get a certified patent search done, and then
> SmellOKeys, Inc. come along and say they have a prior patent the
> damages would be limited to $10,000 or 1% of your revenue, whichever
> is larger. The suing company would be able to claim a limited amount
> against the state, which would give the state incentive to keep its
> certified vendors honest.

But isn't this what the patent offices are supposed to be doing already.
Certainly the UK IPO operates more along these lines. The USPTO is just
a filing service not a vetting service.

I suspect that the patent lawyers in the USA are a more powerful lobby
than those in the UK with respect to government policy and the
pragmatics of operation of their patent filing body. In the UK the
government body is responsible for significant checks for validity as
well as well-formedness. In the USA the courts are where validity is
determined.

[Russel Winder]

On Tue, 2012-06-19 at 00:58 -0700, Morten A-Gott wrote:
> Personally I'd rather change the system to disallow patents of mundane
> "inventions", which typically is just prior art on a new platform. The
> level of some of the patents granted in software and mobile space
> would never be granted in areas like mechanical engineering etc. I've
> always felt the problem is that software is too abstract for the
> patent office to comprehend.

Or patent offices should do their job. I would have thought checking
searches of prior art should be a task undertaken before granting a
patent.

The mobile operator space is a huge standards stitch up. Just look at
the history of the 2G and 3G standards.

> “Patents: If people had understood how patents would be granted when
> most of today’s ideas were invented, and had taken out patents, the
> industry would be at a complete standstill today.”
> —Bill Gates

Definitely ironic.

[Russel Winder]

On Mon, 2012-06-18 at 21:31 -0700, Cédric Beust ♔ wrote:
[…]

> I certainly didn't hand wave it off, I presented evidence that the current
> system is certainly creating a healthy amount of innovation as well. If you
> want to prove your point, you need to build a case explaining why your
> ideas will not make these positive effects disappear as well.

I am not sure you have proven the connection between patents and
innovation. I can prove that televisions cause heart attacks: this is
undeniably statistically provable – as long as you ignore hidden
variables. I believe that your evidence fails to show that patents cause
innovation since there is no direct cause and effect relationship and so
any correlation is a hidden variable at work.

There are cases where patents have been useful, though I have yet to
experience such a success with software separate from hardware, and
cases where patents have failed to support innovative ideas. Both are
plainly there in the records of the courts for all to see. Moreover
there are failure cases where there is no documentation just personal
anecdotal evidence, and so no proof other than personal testimony.

I often rail against (software) patents. The original system was to
provide power to the monarch's friends – stitch up. OK, at least for a
while, the system did get turned into one to enable small guy
innovation. Now though it is a Big Guy game, where the small guy has no
useful role. Patent as tool for scuppering competition is very different
form patent as tool for enabling exploitation of innovation. The patent
system no longer really has any focus on lone inventor. That was a
property of the system in the 17th, 18th and 19th centuries. Since the
20th century the system has just become a business tool for big
business.

> It's not as simple as it looks, and it's sad that the anti-patent
> discussion has turned into more of a circle jerk than a discussion based on
> civilized discourse.

I think this is discourteous, to say the least.

[Russel Winder]

On Tue, 2012-06-19 at 01:15 -0700, Morten A-Gott wrote:
[…]

> That's where I disagree, you didn't present evidence, you connected
> two pieces of information as if there was a causation. As other posts
> pointed out, there are probably better explanations than patents
> explaining why the US is perceived as (I don't know enough about the
> US or Chinas true innovations to conclude that this is a correct
> statement either) more innovative than China.

I would suggest the USA tax system and the relationship of academia to
industry in the USA are the biggest factors as to why USA has been seen
as so successful to date.

Of course large USA corporates are not above plundering ideas from
worldwide and relocating them to the USA. Not all ideas in computing
come from California. But the big USA corporates love that the world
sort of believes this.

[Cédric Beust ♔]

On Tue, Jun 19, 2012 at 1:57 AM, Russel Winder <rus...@winder.org.uk> wrote:

On Mon, 2012-06-18 at 21:31 -0700, Cédric Beust ♔ wrote:
[…]

> I certainly didn't hand wave it off, I presented evidence that the current
> system is certainly creating a healthy amount of innovation as well. If you
> want to prove your point, you need to build a case explaining why your
> ideas will not make these positive effects disappear as well.

I am not sure you have proven the connection between patents and
innovation.

I was not trying to prove anything. I was responding to the claim "The system is completely broken" by giving a few examples that show that the system is not as broken as claimed.

Could it be improved? Of course, and I gave a few suggestions to that effect in the past discussions. But anyone who claims that the current system completely stifles innovation needs to pause for a moment and look at the the US track record in software innovation (pretty good compared to all the other countries).

Maybe the current system *slows down* innovation, but none of the ideas I've heard so far that purport to fix this have met the burden of proof that under these new rules, there would be more innovation than there is right now.

-- 

Cédric

[Josh Berry]

On Tue, Jun 19, 2012 at 10:03 AM, Cédric Beust ♔ <ced...@beust.com> wrote:
> I was not trying to prove anything. I was responding to the claim "The
> system is completely broken" by giving a few examples that show that the
> system is not as broken as claimed.
>
> Could it be improved? Of course, and I gave a few suggestions to that effect
> in the past discussions. But anyone who claims that the current system
> completely stifles innovation needs to pause for a moment and look at the
> the US track record in software innovation (pretty good compared to all the
> other countries).
>
> Maybe the current system *slows down* innovation, but none of the ideas I've
> heard so far that purport to fix this have met the burden of proof that
> under these new rules, there would be more innovation than there is right
> now.

I still feel that the initial innovations in computers serves decently
to show that the current level of patent usage is absurd. Consider if
IBM had a patent on the original BIOS. A "cleanroom" reverse
engineering of it is not even close to a defense from patent
infringement. Hell, a "clean room, you had no idea that another
person even patented something" isn't a defense.

Not to mention your view is pretty insulting to China. Do you really
believe there is no innovation over there?

[Cédric Beust ♔]

On Tue, Jun 19, 2012 at 7:28 AM, Josh Berry <tae...@gmail.com> wrote:

Not to mention your view is pretty insulting to China.  Do you really
believe there is no innovation over there?

Of course not, it's just that if you survey the software companies regarded as being the most innovative over the past decades, you will probably find that a crushing majority originated in the US and very few in China.

This shouldn't come as a surprise: since there is no patent pressure, the incentive to innovate is minimal: just copy whatever you want, add your own touch and call it a day.

-- 

Cédric

[Ralph Goers]

Once again you leap to a conclusion without any evidence whatsoever.   You ignore the effects of communism and just assume that lack of patents is the reason.  Please provide some proof that there is any relationship whatsoever that any lack of innovation that may exist in China is primarily or solely due to patents.

Ralph

[Kevin Wright]

Most dev projects start by somebody wanting to scratch their own itch.  Just look at any programming language ever created, version control systems, databases, home automation, logging frameworks, etc. etc. All things that people first did for themselves.

It's therefore no surprise that people in the US are far more likely to do things that other people in the US will regard as innovation.  It's the same group of people, with the same desires and interests, that is doing both the evaluation and creation of these things.

Try asking around in China what people there consider to be innovative, I'd be very surprised if many people there regard Twitter in this category.

I believe that what you're seeing is selection bias, and people creating products for local demand.  This will happen in spite of patents, not because of them.

But that's just a belief.  Unless we have a like-for-like comparison, controlling for everything except the presence of an overzealous patent system, then it's impossible to make any form of objective statement.  

[phil swenson]

I think you are right that patents aren't killing innovation in the
US. This is pretty obvious as most of the innovations seems to stem
from the US - esp the silicon valley area. Look at the location of
the top 20 market cap tech companies that have formed in the last 10
years if you want proof.

BUT - I've never seen any evidence that patents have a positive effect
innovation in software. Software is largely built on the work of
others' ideas. We just expand on them, with a few new ones sprinkled
in along the way.

Luckily, most software patents are never enforced. This is good as I
would wager every single person on this forum has violated many
software patents. Like this one:
http://www.google.com/patents/US7028023

I think it's naive to think that it's possible for the US patent
office to manage software patents. They are inherently abstract and
largely very difficult to understand. Does anyone really think that
the USPO attracts the quality of computer scientists needed to make
reasonable judgements?

So from a purely pragmatic point of view, I think software patents
should be abolished. They only lead to silly/expenseive
lawsuits/patent wars. Small companies can't afford to apply/defend
their patents. The winners are largely lawyers. And once in a while
a big company crushes someone via a lawsuit.

Lastly, it's good for the industry and customers when someone comes
along, inspired by someone else's work - but knows they can improve on
it. Would the world be better if Yahoo locked up search in 1995 and
Google couldn't do search because of some software patent on "internet
search"? Google came along, destroyed Yahoo, created tens of
thousands of jobs, hundreds of billions of dollars of wealth, and
provided a much better search experience for users. Yeah, it sucks
for Yahoo - but they had the chance to beat Google and the best
product/company won.

[Russel Winder]

On Tue, 2012-06-19 at 07:03 -0700, Cédric Beust ♔ wrote:
[…]

> I was not trying to prove anything. I was responding to the claim "The
> system is completely broken" by giving a few examples that show that the
> system is not as broken as claimed.

I have lost track of who claimed what, when I'm afraid. I wonder though
if there is an element of "cross purposes" at least between your
arguments and mine. I believe the patent system generally, but
especially the USA system, is broken because it doesn't support the
little guy, it is now just being "gamed" by big business and the
lawyers. Over the last couple of years I think I have documented this in
various posting here and on my blog ­– albeit somewhat aggressively
sometimes! I think the innovation that has undoubtedly been happening
in the USA has little or nothing to do with the patent system directly:
seeking patent protection is not an integral part of most innovative
companies strategy.

> Could it be improved? Of course, and I gave a few suggestions to that
> effect in the past discussions. But anyone who claims that the current
> system completely stifles innovation needs to pause for a moment and look
> at the the US track record in software innovation (pretty good compared to
> all the other countries).

I think I have never claimed that the patent system stifles innovation
directly, but I think it can (and does) indirectly. This is not however
in anyway in conflict with your claim (which I agree with) that the USA
has an excellent track record of innovation. I think though that USA
innovation and the patent system are two different dimensions of USA
society.

> Maybe the current system *slows down* innovation, but none of the ideas
> I've heard so far that purport to fix this have met the burden of proof
> that under these new rules, there would be more innovation than there is
> right now.

I haven't yet seen a proposal regarding patents that will refocus the
system back to the 18th century focus on allowing small guy inventors to
benefit from big guy exploitation. I think that time is now over, that
tax benefits, NDAs, good marketing, and rapid time to market are the
main drivers. Certainly patents can be taken out as a defensive
measure, but in the end market penetration prior to competition is
something to be achieved by means other than patents when you are a
small guy in a market where there are big guys.

[Cédric Beust ♔]

On Wed, Jun 20, 2012 at 12:02 PM, Russel Winder <rus...@winder.org.uk> wrote:

I believe the patent system generally, but
especially the USA system, is broken because it doesn't support the
little guy

There is certainly a lot of documented cases where "little guys" get strong armed into paying licensing fees just because they couldn't afford a legal battle, but I think arguments can also be made to show the opposite: plenty of small start ups get acquired on a regular basis for their IP portfolio (I work at one, we file a lot of patents).

The case of small start ups is actually very interesting to study. Typically, a start up gets acquired for any combination of the following three reasons: 1) product/user base 2) talent (the team) and 3) IP portfolio.

Weaken the legal weight of software patents and suddenly, a lot of start ups will become a lot less interesting to acquire for big companies.

Again, I'm not saying that the start up market will die if software patents were abolished but it's the kind of angle that software patent opponents have usually not thought much about.

Food for thought.

-- 

Cédric

[Morten A-Gott]

On Jun 19, 4:48 pm, Cédric Beust ♔ <ced...@beust.com> wrote:
> This shouldn't come as a surprise: since there is no patent pressure, the
> incentive to innovate is minimal: just copy whatever you want, add your own
> touch and call it a day.

Resist...temptation..don't...feed...it...

[Kevin Wright]

On 20 June 2012 20:10, Cédric Beust ♔ <ced...@beust.com> wrote:

The case of small start ups is actually very interesting to study. Typically, a start up gets acquired for any combination of the following three reasons: 1) product/user base 2) talent (the team) and 3) IP portfolio.

So without recourse to patents, startups would have to either produce a better / more popular product, or they'd have to hire better developers (probably both).  This would then translate into more investment in technology and more demand for talented programmers.  Salaries would rise as a result, and less money would leave the technology industry to line the wallets of lawyers.

What's not to like about this scenario? and how would it harm innovation?

 

[Fabrizio Giudici]

On Wed, 20 Jun 2012 00:30:16 +0200, phil swenson <phil.s...@gmail.com>
wrote:

> I think it's naive to think that it's possible for the US patent
> office to manage software patents. They are inherently abstract and
> largely very difficult to understand. Does anyone really think that
> the USPO attracts the quality of computer scientists needed to make
> reasonable judgements?

It depends on how much money the USPO would pay them, which in turn
depends on how much the US goverments feels the need that software patents
are done in the proper way.



--
Fabrizio Giudici - Java Architect, Project Manager
Tidalwave s.a.s. - "We make Java work. Everywhere."
fabrizio...@tidalwave.it
http://tidalwave.it - http://fabriziogiudici.it

[Fabrizio Giudici]

Instead of resisting, you could just provide counter arguments, couldn't
you? I don't think that in China there's zero innovation, but a lot of
blatant copy is also happening. Actually, copying also happens with some
innovative way:

http://en.wikipedia.org/wiki/CE_mark#China_Export

[Phil Haigh]

The way I read it, Cedric is expressing an opinion, not a fact - so you shouldn't shoot him down for arriving at a conclusion that you've inferred.

[Fabrizio Giudici]

On Tue, 19 Jun 2012 17:26:04 +0200, Kevin Wright
<kev.lee...@gmail.com> wrote:

> It's therefore no surprise that people in the US are far more likely to

> Try asking around in China what people there consider to be innovative,
> I'd
> be very surprised if many people there regard Twitter in this category.

I don't live in China, still I don't consider Twitter a big technological
innovation. It's just marketing. I don't see anything that you can do with
Twitter and you couldn't do with other means, such as a RSS feed.
Furthermore it's a single point of failure (80 minutes of blackout today).

[phil swenson]

two more great links on patents:

http://techcrunch.com/2012/06/21/do-patents-really-matter-to-startups-new-data-reveals-shifting-habits/
http://arstechnica.com/tech-policy/2012/06/opinion-eff-should-call-for-the-elimination-of-software-patents/

[phil swenson]

it's always easy to minimize other's innovations.

iphone? there were smartphones in 2000, they just stuck a pretty UI on it.
Facebook? same as friendster.
mongodb? how is it any better than oracle?
java? c++ dumbed down

[Jon Kiparsky]

I don't think it's minimizing someone's innovations to point out that they rest on previous work. The fact is that Zuckerberg had a lot of R&D done for him by friendster and myspace and orkut and so forth, which allowed him to avoid a lot of mistakes and take a lot of ideas which had become obvious.
The iphone, of course, was a pretty obvious move and others had already moved on that concept. Sort of a forced move, really. Failure to combine the ipod with a phone would have been an inexplicable blunder. Making that move was not a stroke of genius.
And of course Java was explicitly intended to be, basically, C++ done right.

All of those examples are examples of innovation, sure, but they point out how little innovation is involved in making a category leader - not how much. You take everything that works and use it, and then you just fix a few things. If Steve Jobs had insisted on innovating in the mePhone, in terms of externals, it would have been a disaster. Imagine if java had not used the C syntax so slavishly - how many potential users would they have lost, simply because of the extra work of learning a new syntax?

[Fabrizio Giudici]

On Fri, 22 Jun 2012 00:55:30 +0200, phil swenson <phil.s...@gmail.com>
wrote:

> it's always easy to minimize other's innovations.
>
> iphone? there were smartphones in 2000, they just stuck a pretty UI on
> it.
> Facebook? same as friendster.
> mongodb? how is it any better than oracle?
> java? c++ dumbed down

This is straw man argument. I talked about Twitter, so please tell me
what's so technologically innovative in it.

[Fabrizio Giudici]

On Fri, 22 Jun 2012 08:57:14 +0200, Fabrizio Giudici
<Fabrizio...@tidalwave.it> wrote:

> On Fri, 22 Jun 2012 00:55:30 +0200, phil swenson
> <phil.s...@gmail.com> wrote:
>
>> it's always easy to minimize other's innovations.
>>
>> iphone? there were smartphones in 2000, they just stuck a pretty UI on
>> it.
>> Facebook? same as friendster.
>> mongodb? how is it any better than oracle?
>> java? c++ dumbed down
>
> This is straw man argument. I talked about Twitter, so please tell me
> what's so technologically innovative in it.

Anyway the latest emails helped me in advancing my mental model of the
"innovation vs patents" thing, and I'd like to share with you to hear your
opinion.

I think that innovation can be classified in two branches: "interface" and
"implementation". As per the classic definition of terms in the former
branch there are things that are exposed to users ("what can I do? what
can I do in a simpler way that I was already able to do?"), in the latter
the things required for the things to work.

So, let's take Java / C# and Twitter as examples.

Interface. With Java / C# programmers can do many more things than they
were used to with previous industrial languages: WORA, by means of a
portable bytecode, all the things that you can do with bytecode
manipulation, powerful OO languages much simpler than the previous C++
(now please let's not discuss on how relevant WORA, bytecode manipulation
is, we're discussing on an example). With Twitter I don't see anything new
that I can do, that I couldn't previously do with RSS feed or such.
Perhaps I can admit that from the user's perspective it's easier to do
that since I have a centralized portal where I can find (almost)
everything I need.

Implementation. In order to deliver the things, Java / C# need a lot of
stuff under the hood. Some of this stuff was already invented (indeed, I
think that back in 2000 most of the stuff was), but an integration process
was needed to deliver it working. Some things, instead, have been truly
innovated (such as new algorithm for GC or JIT). In order for Twitter to
serve billions of users, a lot of innovation in software architecture and
design has been done, as well as stuff in the web user interface, or REST
APIs for integration, etc. I'd say that most of innovation of Twitter lies
under the "implementation" label rather than "interface".

Now, my resuming point. I'm way less tolerant of software patents in the
"interface" field (I could be even convinced that you can't patent
anything here) rather than in the "implementation".

[Oscar Hsieh]

Sorry, simply cannot agree with anything thing you said here.  Don't want to get into the Facebook/apple fight but if you think Java is just C++ done right then yes, you can say Model T is just a faster horse.

Sent from my iPad

[Jon Kiparsky]

That whooshing sound you heard? That was a point going right past you.
No, java is not just C++, but the overwhelming similarities are not coincidence. They are intentional, just as the similarities in the layout of the controls of any two automobiles is intentional. And that does not mean that java is not innovative - it simply means that most of java is based on existing work, which of course it ought to be, and it makes use of established conventions, which of course it ought to do.
Let's make it a little easier: Einstein's miracle year papers have bibliographies. He only made up part of that stuff - I think we can agree on that. Does this observation diminish his work?

[Oscar Hsieh]

That whooshing sound ... Ok, let's not play that game.

The syntax and controls are just interfaces to the technology.  Yes Java and Car manufactures use the dominate/standard interface to help adoption but that does not mean the internal engine cannot be revolutionary.  .  

I understand your point, I just cannot agree that Facebook/apple/java are successful because they don't innovate much.   

Sent from my iPad

[Jon Kiparsky]

Okay, you're right that that was uncalled for. I apologize.

But I think it's a neat paradox that innovation is only valuable when it's kept sharply under control. Imagine a world in which the standard input interface for computers actually used a design which had originally been devised to slow down the user to prevent mechanical failures. Now imagine a computer manufacturer who decided to speed up their customers' input capacity by re-designing that input device so that it was more efficient, and using that re-designed input on all of their machines. What happens?
If you think the answer is anything but "utter failure", walk around your office and count the Dvorak keyboards.
People prefer good old QWERTY, because they've learned to use it and the benefits of switching to Dvorak just aren't that important to them - not important enough to re-train themselves in typing. Anyone who tries to force them to change their mind will learn that customers don't force very well.
If Gosling et al had come up with some better core syntax and built Java on that, the uptake would have been approximately zero. Instead they innovated on making it a safe language for production systems worked on by many hands over long product lives, something most java programmers never notice is the basic point of the language, and they made one of the most successful languages ever.
(in terms of ubiquity, if nothing else)

[Oscar Hsieh]

Not a problem.

In general I think you are right but we also see exceptions like IPod's wheel control, IPhone's touch only interface and wii's motion control.  it does require sizable user experience improvement for user to adopt a new interface.  On the other hand, as you said, uniform interface does not automatically translate into success.  Java took off because it offers many meaningful improvements over C++ such as safety (gc &vm), cross platform (vim), reflection and abundant build in libraries.   If java only offered iterative improvement over C++ then what is the point to migrate.

Sent from my iPad

[Oscar Hsieh]

Sorry, it's 2am and i am not sure if I made myself clear :)

Use your example instead of QWERTY, if they use speech and can provide 99% accuracy, then i am sure many will switch (may be not for programmers :)

Sent from my iPad

[Cédric Beust ♔]

On Sat, Jun 23, 2012 at 10:00 PM, Jon Kiparsky <jon.ki...@gmail.com> wrote:

If you think the answer is anything but "utter failure", walk around your office and count the Dvorak keyboards.

Have you ever tried writing code with a Dvorak keyboard? It's an absolute nightmare. No wonder Dvorak never made much inroads in the developer community, it's far, far worse than a Qwerty keyboard.

 

Instead they innovated on making it a safe language for production systems

I think there's some revisionism lurking in that statement. Java didn't become used in "production" systems for at least five years after it emerged. Java was initially targeted at embedded systems and during its first years, Java's killer app was applets.

Having said that, I certainly agree that the main reason for its success was because it was a gentler, easier to program C++ and that most C++ developers hated their life (I was one of those).

-- 

Cédric

[Kirk Pepperdine]

Oh man how soon the lessons of history are forgotten. In the shops I was in the mantra was, Smalltalk servers, Java front ends and who in their right mind would use C++ for any of this. I guess we all now know how that worked out ;-)