I'll be downvoted to hell for this but he has a point! We do need to let the new get a chance to work. Technology has changed everything and patent law just wasn't written to account for what's happening now. That's indisputable but it doesn't mean the whole system is broken.
I don't think anyone can say "yes the patent system is broken" or "the patent system works fine" definitively because it's not a cut and dry issue. You may argue that patents are a disincentive to innovation while others feels differently. It's really an ideological issue. It's subjective and not objective like people want to make it.
Furthermore, everyone out there yelling about how we need to rebuild the whole patent system from the ground up again or abolish it altogether are really the ones who need to give it a rest. We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.
That said, I can't stand behind Kaposs' statement that pace of innovation is evidence of the patent system working. Did he even hear himself say that? What's his definition of innovation? Sure, we have lots of touch screen devices with different names coming out every single day but is that innovation? But really that's neither here nor there. The pace of innovation and the patent system working are wholly unrelated.
I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason. Again, I swear its an honest question and I have an honest observation. To me, because no one has explained it to me yet, it seems like there are a few trendy startups and companies out there who got burned by the patent system. So then they threw a fit about patent reform. The HNers and Silicon Valley types picked up on this and now its the hip new cause to support. It reminds me of when being anti-copyright and pro-piracy became cool. They seem to have this really nice sounding ideology behind them that's very easy to adopt and so people do. But to me, these ideas, which in a perfect world would work out great, seem divorced from reality. In the case of startups/companies lobbying for this, don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.
You'd be surprised how far and deep the problem goes. I would also argue that it's not just limited to software patents in particular, but it's become common practice for many companies to create patents for anything they can imagine. This has resulted in a deluge of patents that have to be sorted out by the USPTO, and therefore a lot of bad, should-be-invalid patents get okayed.
(Summary: Competitor gets an illegitimate patent approved, and now a company that has been "infringing" on that patent since before they applied to get it has to stop making their product. Why? Because litigation will likely put them out of business, even if they win.)
I'm not against the idea of patents, but the direction they've been going in recently, in fact the direction our entire economy has been going in recently, has been that of favoring those with the money to blow on hordes of lawyers capable of interpreting and navigating the legal minefield they themselves have lobbied to create.
We could, its in the right of goverments to do that.
> That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.
Thats hard to predict and otherwise its a really bad argument. It remindes me of the argument against lowering inflation. Yes lowering inflation will always creat problems, sometimes even very bad ones but that is no reason to just keep going.
Taking a stand and hit the problem in the face, deal with the consequences and from there on build on a much more solid ground like we did in monetary policy.
> I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason.
I for one think that it is simple a ineffective system that will just harm the economy and the social live more general (specially in the case of copyrights).
From a purly economicl view it seams clear that all form of IP are harmful. Resources that are not limted do not need a propery rights system. I can not prove this (and I think nobody can) the benefits from copying are much much greater then the benefits from improved insentive.
If you look at sientific discovery and innovation, how it works is many small steps and improving little by little. Revolutionary discoverys do not happen very often.
There are many reason this is specially true in practice. In the real world the patent system is ruled over by a goverment agency that is (like any goverment agency) subject to lobbying and other problems discribed in public choice theory (http://en.wikipedia.org/wiki/Public_choice_theory).
> don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.
Sure they would. I would too. That is exactly why we have to change insentives. As long as the system is as it is people will have the same insentives (an we all know what these are).
The most importend economic book you will every read will just say "insentive matter" on every page.
Fair enough, good points. But do you kind of see what I'm getting at toward the end? You may have some strong beliefs on patent law but does everyone? Really? Is it just me or does anyone else see this as a bandwagon thing. The next hip cause to support. More people regurgitating something someone told them without reading up on it on their own. That sort of thing. Everything else aside, that's what bothers me most about this issue.
> Fair enough, good points. But do you kind of see what I'm getting at toward the end? You may have some strong beliefs on patent law but does everyone? Really?
I do understand. I think its a valid point but I also think the hype throws a lot more attention on the issue. Attention that is rightly there.
> Why does everyone really want to reform/abolish our patent system? I mean, really.
The current state of software patents is such that a company can stock up, lawyer up, then sue out of existence any attempt at competition. They were invented to promote innovation, not stifle it. I honestly have a hard-time imagining any competent programmer standing behind half the garbage that passes for 'innovative' patents. It would be one thing if it were just patents that were not being used, but its taken to court, succesful cases that prove the point. One-click purchasing? One-box multiple search? Companies are patenting anything they can think of - the most obvious and minor of innovations - and succesfully pushing others out. That's anti-competitive in its aboslute purest.
> We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution.
Most people aren't anti-patent et al - just anti software patents. A more apt analogy would be wanting to re-write a specific interpretation of a specific clause of the constitution.
> it seems like there are a few trendy startups and companies out there who got burned by the patent system.
If companies were providing actual evidence of specific, long-term, expensive investments that resulted in software innovation, with a compelling case that it would not have been invented otherwise (aka a high school coder couldn't possibly mimic it), then yeah, maybe I coudl see a justification. But the current "just show us that there's not other patents out there that did this alreadY" can only be justified by one means: "I'm a lawyer, and I want to make a good living". Case in point - David Kappos.
> when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.
I wouldn't. For many of the "I shall take advantage of this system" person/company out there, there are thankfully examples to the contrary. Redhat. Google. Sun Microsystems (RIP).
I'm convinced that the reason this issue is being aired more often now, is because the greedy kind (the trolls and unscrupulous management of product/service companies) have overplayed their hand. They have gone a bit too far with all this aggression, and I for one am very glad to see people respond in kind.
I don't think anyone can say "yes the patent system is broken" or "the patent system works fine" definitively because it's not a cut and dry issue. You may argue that patents are a disincentive to innovation while others feels differently. It's really an ideological issue. It's subjective and not objective like people want to make it.
Furthermore, everyone out there yelling about how we need to rebuild the whole patent system from the ground up again or abolish it altogether are really the ones who need to give it a rest. We can't just rewrite all patent law or get rid of patents. That's like saying the US needs a new constitution. So much has been built on top of and around patent law that making such drastic changes would have ripple effects that would be worse than the original problem.
That said, I can't stand behind Kaposs' statement that pace of innovation is evidence of the patent system working. Did he even hear himself say that? What's his definition of innovation? Sure, we have lots of touch screen devices with different names coming out every single day but is that innovation? But really that's neither here nor there. The pace of innovation and the patent system working are wholly unrelated.
I also have an honest question. Why does everyone really want to reform/abolish our patent system? I mean, really. The real reason. Again, I swear its an honest question and I have an honest observation. To me, because no one has explained it to me yet, it seems like there are a few trendy startups and companies out there who got burned by the patent system. So then they threw a fit about patent reform. The HNers and Silicon Valley types picked up on this and now its the hip new cause to support. It reminds me of when being anti-copyright and pro-piracy became cool. They seem to have this really nice sounding ideology behind them that's very easy to adopt and so people do. But to me, these ideas, which in a perfect world would work out great, seem divorced from reality. In the case of startups/companies lobbying for this, don't you think that when they get to such a size where keeping the status quo would help them more than reforming patent law would that they'd drop their ideology and start throwing patent suits around like everybody else? I do. Because I would.