Tuesday, October 23, 2007

Software patents

Earlier today RocketRoo left a comment on my earlier post on A color scientist's role, but it really is a new thread because my post had nothing to do with patents, so I am answering with a new post. Here is the comment:

Regarding the role of patents, one of the 2007 Nobel laureates in economics, Eric Maskin (http://nobelprize.org/nobel_prizes/economics/laureates/2007/), also did research at MIT on the value of software patents. He determined that software was a market where innovations tended to be sequential, in that they were built closely on the work of predecessors, and innovators could take many different paths to the same goal. In such markets, he concluded, patents might serve as an innovation inhibitor rather than an innovation incubator. See http://www.researchoninnovation.org/patent.pdf

Personally, I have mixed feelings about patents. The original idea was for society to reward inventors for their contribution by allowing them the right to exclusively reap the commercial benefits of their invention. However, now the system is broken.

If there is a date to be set for when system broke, it is probably the day the patent for the intermittent wind-shield wipers was enforced. But in reality, the system got broken by the submarine patents.

Some submarine patents came into being innocently. As I wrote in the post on A scientist's role, discovery is in the air and the skill is in being the first to grasp them. An inventor's antenna can pick it up and he or she can intuitively reduce it practice and file for a patent before the rest of the pack does. But when this happens too far ahead of the bleeding edge, the discovery is not yet well defined in the ether and intuition plays a larger role. Because of this, it is very difficult for a disconnected outsider to appreciate the invention, especially when we no longer show up at the Patent Office with out physical prototype..

Patent examiners are in such a difficult position and it can take a lot of back and forth until the examiner is satisfied that all that implicit knowledge has been made explicit, and can grant the patent.

But then there are the slacker or parasites, known more scientifically as defectors, who when they detect a discovery in the air submit a vague patent application based on a hunch, without understanding the issue nor attempting to render it to practice. An outsider, such as an examiner, has no way to tell a defector from a cooperator, so they have to give the benefit of the doubt while at the same time pursuing due diligence.

In Japan, applications are laid open after six months and anybody can comment on the applications. The system is more fair, but comes at a high cost for the engineers who are forced to work through reams of applications every day for a few hours.

Here in the US a similar system is being studied and HP is one of the companies behind this effort. If you are very experienced, I may suggest you join this collaborative effort as a reviewer. Just go to the Peer-to-Patent site, enroll, and review those patent applications that are in your field of expertise.

So far for the ethical issues. Your comment was about software patents. One problem is that software patent applications have been allowed only since about 1989 (AT&T Bell Labs traveling salesman patent). By that time computer technology was as advanced in several research labs, as it is now in the commercial world. However, in these 30 years computer development has changed so much with the use of wizards and frameworks, that today's programmers have no knowledge of what was standard practice 30 years ago. Hence, the wheel keeps being reinvented.

So, shall we get rid of software patents? It depends. We had this discussion about five years ago in one of the Swiss National Science Foundation Review Panels. We came to the conclusion that an invention should be patented only if it is necessary to protect a new business venture. When this protection is not necessary, then the funding should be invested in new engineering, not in patenting, because they cost more or less the same and in the long term engineering is better for society.

This also leads to agile companies that must innovate faster than the competition can catch up with copying. The Swiss have recognized this as a competitive advantage of their industry.