The Free Software Foundation (FSF) got around to reporting the Arstechnica article about the problem with software patent “scale”. What is this issue and how is it to be resolved in the real world?
Concerning Biz-method Patents
The basic problem (behind “scale”) is this: software patents are too difficult to identify. The Arstechnica article pointed out that it is impossible to possibly sort through all of the patents, even if you hired every register patent lawyer in this country. Furthermore, how do you identify a patent-infringing program without writing it all yourself? If you have even a partial match to another piece of software (and note that there is no way of knowing WHICH part of your software code matches someone else’s) then you are infringing on someone else’s patents. But how much needs to match? After all, assuming you understand something about programming, you know that everyone who writes software is using a programming language, and thus everything you can type from the keyboard is going to be the same as what anyone else is typing from the keyboard, assuming you want your code to make a working program that is. Okay, so how much is considered a match that violates copyright or patent infringement?
Copyright infringement (at least this is the way I understand it), is when you copy someone else’s code line by line. You can avoid copyright infringement simply by changing the variable names and spacing between commands. It’s that simple. (I could be wrong on that, but I’m not a federal judge. Not like he’d have a better opinion – just one that counts. lol)
Patent infringement traces its roots back to the business method patent. What is a business method patent? Imagine a company had a product line for producing tires. Say they used a software program for managing their assembly line. The fact that they use a software program for managing an assembly line that produces tires is a business method, and it is patentable. Silly? Many people think so. Some people like the idea of their being patents on unique and creative procedures (in order to encourage creative enterprise, WHICH IS WHAT THE LAWS WERE THERE FOR IN THE FIRST PLACE), but most people who aren’t in big business agree, many business method patents are ridiculous. As headfoot said in my favorite part of the article (the comments section):
The problem isn’t software patents themselves — it’s the fact that things as broad and general as “Slide to Unlock” are patentable…
No one should dispute the fact that advanced algorithms/methods/processes that take research, development and study to craft are patentable. Problems that are specific and take WORK and innovation to solve should be patentable. This “Slide to Unlock” and “Rectangle with a screen in it” patents are bullshit and give the whole system a bad rap. Either that or just move it under the copyright umbrella. The main point being, people who work hard and innovate in new ways should be protected for some time as guaranteed in the US Constitution.
If the software does a specific job in a specific way, should it be patentable (even though this is what qualifies it for being patentable)? No. Like any language, programming languages are limited in how you can say things to get a job done. Imagine, you software geeks out there, if someone had patented the idea and use of linked lists (probably closer to a copyright issue than a business method patent, but I’m sure you could reformulate the situation to make more sense). I can guarantee you, there would be an enormous outcry. Unless of course, people do what they do today, which brings me back to the title of this post: avoiding the issue. For this example, that would be rather hard to do, and the company who held the patent would go around suing people and other companies. Speaking of which, that brings us to the next section of this article, concerning Mr. Nathan Myhrvold.
Meet the new middleman: Nathan Myhrvold
First, who is this guy? The Arstechnica article I mentioned above mentions a scientist and self-proclaimed entrepreneur Nathan Myhrvold. Apparently, he’s a really smart guy, at least by credentials. Note that says nothing about his social awareness or understanding of political issues. Myhrvold and his endeavors were examined in a business week article from 2006, linked to from the Arstechnica article. Interesting fella. His solution for getting around the patent problem is to buy a license from his company (Intellectual Ventures) for a portfolio of patents. Thus, companies would buy from his company and thus feel safe. In other words, he gets to be the middle man instead of the government. Sound selfish? You betcha! His company is still around, boasting a quote on the main page of its website from its beloved owner:
“An industry dedicated to financing inventors and monetizing their creations could transform the world.”
–Nathan Myhrvold, Founder and CEO
Interpreted one way, it sounds like he’ll pay for someone to do the work and then make money off of them. Okay, so he’s like an employer without that title, per se. Can’t expect much different from a capitalist. So what’s the issue? Continue reading…
IT Dependencies… outside of code
We introduce a quote from business world:
With its vast hoard of patents, IV could turn out to be the world’s biggest patent troll. It could have the power, at least in theory, to sue a vast swath of Corporate America, becoming a force that smothers rather than nurtures innovation. …
Myhrvold, not surprisingly, dismisses these fears. He says he’s opposed to patent litigation. In response to charges that he is a predator, Myhrvold describes himself as an entrepreneurial financier, somebody who is devising new ways to fund innovation. He likens himself to the first generations of venture capitalists and private-equity investors, who were also widely vilified. Myhrvold believes that there is an emerging trend to treat intellectual property, and patents in particular, as an asset that people and companies will invest in, the same way they do in real estate or stocks. The result, he believes, will be a boon for invention, just as venture capital and private equity have stimulated enormous growth and innovation in the American economy. “I’m one of the first invention capitalists,” he says.
Let’s assume this is true. First, let me say I don’t believe Myhrvold would sue corporate America. That does not at all appear to be his intent, and it’s bad business on his part (no one would trust him after that). My interest in this quote is his business plan. The key phrases in the quote above are “real estate” and “stocks”. I immediately thought of American history (something we all should learn from).
There was a big real estate boom in Florida right before the Great Depression. Over speculation on prices raised the market values of houses. People sunk their money into the well only to find out it didn’t come back. Then we had the Great Depression with credit. For some odd reason, credit stayed around after the Great Depression. People bought stocks on credit, hoping to ride the market up. But then people couldn’t pay it back, and money ended up in the hands of a rich few.
If Intellectual Ventures gets its wish of a business world, we could very easily being seeing the makings of another Great Depression in a world that is becoming ever more reliant on information technology (IT) companies. Myhrvold told Business Week, “You have a set of people who are used to getting something for free, and they are some of the wealthiest companies on earth.” (Timothy Lee, the Arstechnica article writer who quoted Myhrvold, did exclude the full details of the quote; Myhrvold was criticizing big IT companies for infringing patent rights.) That’s right, Mr. Myhrvold. They also hold a majority of the technology patents, and people are going to be riding on them if your business plan works out. There’s a reason big companies are supporting Myhrvold. Did I mention something about money ending up in the hands of a rich few during the Great Depression? I can already see little companies buying into these portfolios, failing, and having nothing to sell or show for their work. The patent world costs something, but it hurts little companies the most. If they have to pay for patents and then fail, what do they have to give back? Their situation is similar to the debt/credit situation in the Great Depression.
The relation to the Florida real-estate boom might be a bit more difficult to see. Really, it’s the same as the debt/credit situation aforementioned. Companies might invest in technology that looks very promising. Other companies then jump on the bandwagon, and everything comes tumbling down when it all fails. Real world manufacturing (amongst other industries) can also have this problem, except that things these days are designed using software, so things can be tested more now. It is primarily the information technology (IT) world (including the software world) that would have this problem if Myhrvold’s business model was implemented.
Concluding remarks on Myhrvold
Myhrvold isn’t going to stop Google from hiding its data in the dark, but it will certainly resolve some issues, assuming the software patent problem is left unaltered by the government. I kinda admire Myhrvold’s efforts, and I do see where he is coming from as a scientist. However, in the end, I don’t think this is the ideal solution much less one that relieves all patent-related fears in the business world.
In the end, what businesses typically do is avoid researching patents. Yup, they ignore them. It’s easier (and to an extent, cheaper) just to argue in court and maybe pay some multimillion dollar lawsuits than keep track of patents. Furthermore, I don’t see how Myhrvold is complete security. So he buys up patents – that doesn’t mean he’ll ever have all of them, much less enough to say with complete confidence that any one particular company is completely within their legal boundaries for using a particular code. So far as I know, Myhrvold doesn’t have some secret database for all software patents in order to keep track of them.
If you haven’t guessed by now from reading previous articles of mine: my solution is free software according to the FSF definition.
If you’d like to like to stay on top of studies of society and culture, particularly in the area of information technology, I recommend reading articles on the Social Science Research Network website.