Thursday, June 28, 2007

Lee, Aharonian exchange thoughts on software patents

IPBiz notes the following thread at IPCentral concerning a dialog between Lee and Aharonian, arising from an oped by Lee in the New York Times:

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.

IPBiz notes that it was IBM that obtained the patent for qeues for toilets on airplanes, which people like Beth Noveck don't bring up when savaging the patent system with the Smucker patent on crustless sandwiches.

IPBiz notes that the author Solveig might have been more specific when she wrote: peculiar to our system, because of problems with the way it is administered.

Note the earlier IPBiz post:

Aharonian blames nanotech companies for backlog, but who's to blame for the '811?


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