Eyes Above The Waves

Robert O'Callahan. Christian. Repatriate Kiwi. Hacker.

Tuesday 8 March 2005

Slough of Despond

Today may end up being remembered as the sad day when software patents became inevitable in the EU. I feel quite upset about it.

If the US regime holds sway, the rational path to financial success in the software industry must change dramatically. It no longer makes sense to take great ideas and create, sell and support software products. Instead, at modest expense and low risk you can obtain software patents covering your ideas in all their variations. Then just sit back and wait. When someone manages to create and market a successful product that "infringes" one of your patents, wait for them to get established, then move in and demand your cut. Their options are limited: countersuit is impossible, since you are careful not to have any products yourself. Reengineering and rereleasing their software to avoid the patent is likely to be very expensive and difficult, and in any case you can claim damages on everything they've shipped since you made your claim against them. If they have shallow pockets and you ask for little, they'll probably settle. If they choose to fight, law firms or investors will back you if your patents are strong, and eventually you've got a good chance of winning the jackpot. Once you have a war chest, you'll do best suing large profitable companies who are foolish enough to integrate your "invention" into some high-volume product.

So why isn't everyone already doing this in the USA? A lot of people are doing it, and more all the time (see Intellectual Ventures). But to date, most of the smart people who are really good at coming up with new software "inventions" have been busy working in companies that manufacture actual products and are therefore vulnerable to countersuits. The advantages of the pure parasite company are only gradually being realized.

Is it really that easy to come up with new, strong patentable ideas that will cover future products? Sure. In fact, that's the job of academic and industrial researchers in computer science, and I did it for many years. But in fact those researchers are hamstrung by the need to hone their ideas into workable implementations, run experiments, publish reproducible and sound results, discard ideas that don't work, do diligent comparison with related work, communicate it all to their peers, and shepherd their ideas into production systems. The parasite model does away with all that; come up with an idea in the morning, and you can have it in the lawyers' hands by the afternoon. I estimate a good researcher should be able to improve patent production tenfold by shifting to the new model. Certainly not all the patents obtained will prove valuable or valid, but many will.

If this is true, why are the big companies still pushing for extension of the software patent regime? I believe it's institutional inertia in most cases. For example, within IBM many people are sympathetic to the facts as I have presented them here. But the structure of the organization, the reward systems, and the managment outlook are all completely oriented towards "more patents is better". I suspect major trauma will be required to turn that around.

Why is software specially harmed? I think the sheer ease of creation of new "inventions", and the very large number of novel "inventions" required to implement even a modest-sized software product, distinguish software from other fields of endeavour and make it particularly vulnerable to parasites. But I don't deny that patents harm other industries.

Isn't it just because software patent regimes have been badly implemented, but they're OK in principle? Perhaps, but then I think the burden of proof lies with patent proponents to demonstrate a well-implemented regime in the US (or anywhere else) before expanding it to the rest of the world.

Take away this mantra: products are bad, because they make you vulnerable. Only those who produce nothing will prosper.

The other thing to take away is that anyone who talks about their "defensive patent portfolio" is hopelessly out of touch. There is no longer any such thing.

Alright, I do seriously think that's the way we're going. But at this point, when all I see is frustration and anger, Jesus gives me a kick.

Then Jesus said to his disciples: �Therefore I tell you, do not worry about your life, what you will eat; or about your body, what you will wear. Life is more than food, and the body more than clothes. Consider the ravens: They do not sow or reap, they have no storeroom or barn; yet God feeds them. And how much more valuable you are than birds! Who of you by worrying can add a single hour to his life? Since you cannot do this very little thing, why do you worry about the rest?

Tomorrow I'll do my job and let God worry about the big stuff.


Andrew Douglas
I absolutely love that quote.. but remember, there are times to get angry when you see something that's not right. Jesus wasn't very happy when he saw what was going on in the temple, now was he?
Didn't mean to get too biblical...
but don't give in too easily.
Robert O'Callahan
Understood, but I am already doing about as much as I can.
Jeff Walden
With your column-based layout, this post triggers some column layout bugs. I'll post back once I've filed a bug report so that others don't accidentally file dupes.
Jeff Walden
Robert, I'm CCing you to the bug - hope you don't mind. Also, feel free to dele this comment if you want.
Jeff Walden
I just filed bug 285348 - Columns do not fully render on first load (even when loading from cache).
Jon Johnston
An excellent post, man.
As a yank, I'm not sure exactly what to think about the EU's software patent direction. Maybe it evens the playing field between the US and the EU. Maybe it means that the EU will have to employ more lawyers and that anyone who might have a damned good idea but no money will ultimately be screwed.
When you consider software patents, and I don't know that much about the law, I wonder what happens to universities - think about where the Internet came from, the web, etc. If corporate body A gives a grant to the University of Minnesota, and they invent the next great thing, who gets it?
Time will tell. Nice ending.
I have faith that there are enough smart people around, enough people who understand how progress works that over the course of time the system will adapt and adjust. Nothing is forever...
Hmm.. this is a naive belief. Really need to read Jared Diamond's "Collapse: How Societies choose to fail or succeed".