Author Archives: Michael Risch

Incentive Granularity and Software Patenting

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I would like to address a comment repeatedly seen on my prior post at Prawfsblawg: “Show me an invention that would not have happened for the entire patent term, and maybe then we can discuss whether the patent system does any good.”

I’m not convinced this is the right level of granularity. But first, a couple caveats:

  1. I tend to think the patent term is too long for the speed at which technology develops today, especially computer software. This may not be true for pharmaceuticals, which leads to tension in the system.
  2. Of course we should look at whether individual patents were incentivized by the patent grant. It would be a bad system indeed if we protected everything that would have occurred anyway. Note that I think the “inducement” standard proposed by Duffy & Abramowicz and discussed in my previous post has some real merit.

But even with these two caveats, that’s not the question we should be starting with. The goal of the patent system is to promote progress of the useful arts. That might happen by encouraging investment in start-ups. That might happen by encouraging research & development funding. That might happen by inventions that come earlier than they would have, even if they would have otherwise come within 20 years. That might happen by allowing inventors some breathing room to invest in commercialization and dissemination of the invention. That might even happen by ending duplicative (wasteful) races carried out in secret. And all of these things might create costs, perhaps tremendous costs for some who come later.

To be sure, there is great (and I do mean tons of) study and debate about whether any of these benefits actually materialize and outweigh the costs. The analysis, though, takes place at a higher level than whether each and every invention would have come about within 20 years. That analysis – or something like it – certainly has its place, but not when assessing the system as a whole. And that’s all I have to say about that.

Two Worlds of Software Patents

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I recently participated in Santa Clara Law School’s great conference on “Solutions to the Software Patent Problem.” The presentations were interesting and thoughtful, and…short! A total of 34 presentations in one day, including some Q&A from the audience. Op-Eds from the conference are continuing to appear at Wired Magazine’s blog, and Groklaw has a fairly thorough article summarizing the presentations.

I want to focus this post on an epiphany I had at the conference, one that is alluded to at the end of the Groklaw article. In short, there appear to be at least two world views of software patenting (there is probably a third view, relating to natural rights and property, but I’m going to put that one to the side). More after the jump.

On the one hand, you have the utilitarians, who believe that the costs of patenting might be worth the benefits of patenting. Or maybe they aren’t, but that’s the important question to them: to what extent does allowing software patent drive innovation? The Groklaw article implies that this group is primarily large corporate interests, but I think that’s too restrictive. For example, I’m unabashadly a member of this world view, and my affinity is toward start-ups.

On the other hand, you have what I’ll call the friends of free software (more fully called FOSS – Free and Open-source Software). These individuals believe that software is thought, and math, and that no one can own it. I’ve found that some take this view to the extreme – they have no problem with a circuit that performs the same thing as software, so long as it is performed in hardware. Members of this group believe that software patents should be unpatentable as a matter of principle, and that by allowing any kind of software patenting bad things will happen to individual programmers, to free software, and in the world generally. As further evidence that the divide is not just about large corporate interests, there are plenty of people who subscribe to this world view that started large successful companies.

Now, here is the epiphany – I belive that bridging these two worlds is  possible if one believes that any software patent should issue. (If you agree that software patents can never satisfy utilitarian ends, then you can bridge the worlds. Benson Revisited  by Pamela Samuelson is a great example of such a bridge.)

Believe me, I tried to make the leap. I wrote a lengthy post at Groklaw that garnered more than 1300 comments where I tried to better understand the free software view and they tried to understand mine.

Surely, I thought, they might see that there are some lines that can be drawn that would allow for inventive software innovations. Surely, I thought, we can discuss some tweaks that would help alleviate the deleterious effects of low quality patents but save the system for one good software patent.

Surely, they thought, I would see how software patents are a bane to society, and must just go. Surely, they thought, I would see that there is no such thing as a good software patent.

The problem is that the goals of each world view are just too different. The following exchange from the Santa Clara conference between John Duffy and Richard Stallman drives the point home. I’m paraphrasing the statements, of course:

[Stallman's keynote]: Companies don’t need software patents to innovate – just look at the rise of Google. [later] My proposal is that we can enforce software patents in standalone devices but not in general purpose computers.

[Duffy's talk]: I’m glad Stallman points out that software companies don’t need patents – I think we agree on a solution. My proposal is that if an inventor is not induced to invent because of the prospect of a patent, then the invention is obvious and no patent should issue.[later]Stallman’s proposal, though, is a kludge – a patch on the system rather than an elegant solution like redefining obviousness.

[Stallman in response to Duffy]:It doesn’t matter if the patent induced the invention, it is still a bad patent. It may actually be worse, because now it can’t be invalidated. My solution is not a kludge, because it handles the very real problem of software patents and eliminates it.

[Duffy]: But you have to look at the ex ante incentive to invent. If we don’t allow patent enforcement, inventions might not happen that would have happened with the patent system.

[Stallman]: It’s OK if we don’t get those inventions. Maybe
they will be developed, maybe they won’t, maybe they will take longer, but the harm to any future software programmer/company is never justified by encouraging that investment with a patent.

And there you have the core of the problem. Utilitarians like Duffy (and me) believe that it is worth driving the ex ante incentive to innovate, but trying to hone the system to minimize collateral damage. Free software folks like Stallman (and probably 99% of Groklaw readers) believe that the collateral damage never justifies the ex ante incentive in a practical way.

You can see the core of these arguments in the debate about whose invention is elegant and whose is a kludge. Duffy believes that tweaking inducement to invent is elegant because that’s what utilitarianism is all about. Just barring patents on general purpose computers is a patch, because there might be valuable innovations in the use of general purpose computers that are worth encouraging. Investment in standalone software might decline if there is not general purpose application at the end of the rainbow, especially in the age of smartphones.

On the other hand, Stallman believes that barring enforcement on general purpose computers is elegant, because it eliminates the most harmful effects to programmers. He believes that changing obviousness is a kludge, because it refuses to acknowledge that even the patents that come from the new rules will be bad for society. As Stallman commented to me after the conference: “There may be weak patents, and there may be strong patents, but they are all bad patents.”

So, where does that leave us? I don’t know, but I have to think it is helpful to understand why we can’t seem to understand each other. I’m not sure where it leaves the utilitarians. They seem to be winning in policy circles, as this recent speech by PTO director David Kappos shows, but utilitarians can’t even seem to agree among themselves the best course of action with software patents. Perhaps this recognition will aid those with the free software view to hone their arguments in a way that will get more policy traction – by making their same important points, but somehow framing them in a langauge utilitarians will hear. Samuelson’s Benson Revisited article is a good example.

Smartphones and Software Patents

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I will be speaking at Santa Clara Law School’s outstanding conference about Solutions to the Software Problem tomorrow.  It promises to be a great event, with academics, public interest advocates, and government officials all weighing in.

As a lead-in to the conference, I want to discuss an oft repeated statistic: that there are 250,000 patents that might be infringed by any given smartphone. I’m going to assume that number is accurate, and I have no reason to doubt its veracity. This number, many argue, is a key reason why we must have wholesale reform – no piecemeal action will solve the problem.

Here are my thoughts on the subject:

1. Not all of these patents are in force. Surely, many of them expired due to lack of maintenance fee payments.

2. Not all of the remaining patents are asserted. After all, we don’t see every smartphone manufacturer being sued 250,000 times.

3. Many of these patents are related to each other or are otherwise aggregated together. Thus, there are opportunities for global settlements.

4. Even if you think that 250,000 is huge number of patents (and it is, really – there’s not disputing that), it is unclear to me why anyone is surprised by the number when you consider what’s in a smartphone. More specifically:

  • A general purpose computer and all that comes with it (CPU, RAM, I/O interface, operating system, etc.).
  • Active matrix display
  • Touch screen display
  • Cellular voice technology
  • 1x data networking
  • 3G data networking
  • 4G data networking
  • Wi-Fi data networking
  • Bluetooth data networking
  • GPS technology (and associated navigation)
  • Accelerometer technology
  • Digital camera (including lens and image processing)
  • Audio recording and playback
  • Battery technology
  • Force feedback technology (phone vibration and haptic feedback)
  • Design patents

The areas above are by and large “traditional” patent areas – they aren’t software for the most part. And there are thousands of patents in each category, before we even get to the potential applications of the smartphone that might be patented (and these are of greater debate, of course).

So, yes, there are many, many patents associated with the smartphone, but what else would you expect when you cram all of these features into a single device? Perhaps smartphones are the focus of the software patent problem because, well, they do everything, and so they might infringe everything. I’m not convinced that this should drive a wholesale reform of the system. Maybe it just means that smartphones are underpriced given what they include. Not that I’m complaining.

Score 1 for Quants, but Score 5 for Pollsters

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There’s been a lot of talk after the election about how one big winner (after Obama, I imagine) is Nate Silver, of the FiveThirtyEight blog. He had come under fire in the days/weeks leading up to the election for his refusal to call the race a “toss up” even when Obama had only a narrow lead in national polls. He even prompted a couple of posts (in his defense). Turns out that Silver called the election right – all fifty states- down to Florida being a virtual tie.

But that’s old news. I want to focus on something that may be as, or even more, important. The underlying polling. We take it for granted that the pollsters did the right thing, but their methodology, too, was under attack. Even now, there are people – quants, even – who were shocked that Romney lost because their methodology going in to the election was just plain wrong.

So, that’s where I want to focus this post  - not just on “math” but on principled methodology.

It’s easy to take the pollster methodology for granted. After all, they’ve been doing it for many, many years. That, plus the methodology is mostly transparent, and past polls can be measured against outcomes. Taking all of this methodology information into account is where Silver bettered his peers who simply “averaged” polls (and how Silver accurately forecasted a winner with some confidence months ago). Everybody was doing the math, but unless that math incorporated quality methodology in a reasonable way, the results suffered.

It didn’t have to be that way, though. As Silver himself noted in a final pre-election post:

As any poker player knows, those 8 percent chances [of Romney winning] do come up once in a while. If it happens this year, then a lot of polling firms will have to re-examine their assumptions — and we will have to re-examine ours about how trustworthy the polls are.

This is the point of my title. Yes, Silver got it right, and did some really great work. The pollsters, however, used (for the most part) methodologies with the right assumptions to provide accurate data to reach the right answers.

The importance of methodology to quantitative analysis is not limited to polling, of course. Legal and economic scholarship is replete with empirical work based on faulty methodology. The numbers add up correctly, but the underlying theory and data collection might be problematic or the conclusions drawn might not be supported by those calculations.

I live in a glass house, so I won’t be throwing any stones by giving examples. My primary point, especially for those who are amazed by the math but not so great at it themselves, is that you have to do more than calculate.  You have to have methods, and those methods have to be grounded in sound scientific practice.  Evaluation of someone else’s results should demand as much.

Bayonets, and the Importance of Original Research

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Just a short blog post. You may ask what bayonets have to do with the general theme of this blog. Maybe a bit more than you think. I’ve just published an article  called America’s First Patents. It is a study of the actual patents issued between 1790-1839. Not a study of what other people said about them, or guessed about them, or inferred.  We actually read the patents. Sometimes you have to do the work.

Which brings me to the topic of bayonets. The blogosphere and standard media is ablaze with criticism of President Obama’s remark that we have fewer bayonets today. After all,we still use bayonets! 500,000 of them! And we only had 100,000 soldiers in 1916, so of course we had fewer bayonets!

Except no one actually looked, and it wasn’t that hard.

This report on 1917-1918 Ordnance makes clear that the US government ordered nearly 2,000,000 bayonets in 1917-1918, and even that was 500,000 less than the number of rifles available for bayonets.

The common point is that when it comes to history you have to do the work. you can’t rely on guesses, because they are often wrong. My patent study took several people many months to complete. It took me about half an hour to find an actual document that could have answered the question (a silly one at that) on which so much virtual ink has been spilled.