Depends. If the new design is truly innovative, something which HP’s own engineers would likely not have thought of for many years, and the Bell guys spent a lot of time and money on working out all the details, and then HP simply takes the result of their work and puts it into a printer – then sure, sue their pants off. On the other hand, if it’s an evolutionary improvement to an existing design, and HP’s own research department came up with the same idea independently, and HP still has to do the 99% of perspiration needed to turn that 1% of inspiration into a marketable product – then, well, “troll” may be a bit harsh in this case, but I would certainly question whether the patent system is either fair or necessary for innovation in such a case.
The scary thing, of course, is that HP doesn’t have a choice in the matter. Once the idea for the new diode has been published so that HP’s engineers knew or reasonably could have known about it, Bell has them by the balls. For the next decade-and-a-half or so, Bell can ask an arbitrary high price for the right to use the idea, or simply refuse to license the patent at all. A patented idea is like the ultimate “gotcha”: once you learn about it, you can’t unlearn it, even if you would have much preferred to spend the (perhaps quite small) amount of research it would have taken to independently work out the idea on your own.
Oh, well, that’s OK then. I was worried there for a minute.
An interesting thought, but there are so many political, social and cultural differences between China / India and Western Europe / the U.S., that it seems rather arbitrary to pick this particular difference as your explanation.
One could just as well hypothesize that it’s the other way around, and the excessively strong patent protection we have in the West is what keeps those developing tech industries down. After all, their own populaces are not yet rich enough to form a large market for luxury goods. So if you want to innovate a new microchip or operating system or whatever, the U.S. and Europe are going to be your primary target market. Now, as long as the chip factories in China and India are just producing whatever Intel or AMD tells them to produce, there’s no problem because those companies all have patent cross-licensing deals with each other. But if an Indian company were so audacious as to produce an innovative chip design of its own, and try to sell it on the Western markets, they would immediately get sued from a hundred different directions by companies claiming real or imagined patent violations. So that rather diminishes their incentive to invest in pushing the boundaries of technology.
As for the two specific examples you mentioned, Viagra and Vista:
[ul]
[li]As has been mentioned a few times in this thread, the development of new medicines is one of the (few) areas where the patent system as it currently exists, seems to work pretty well and is indeed necessary for innovation, because it can take many millions of dollars to develop and test a new kind of medicine, and without patents there would be no way to get that investment back. But lessons learned from the medicinal world do not necessarily apply to other modern industries, where innovation tends to happen in a more incremental fashion.[/li][li]While I’m sure that Vista represents an enormous amount of engineering work, it’s not a particularly innovative product. Most of its features already existed in some form or another, and it’s hard to think of any feature of Vista which, in isolation, could not have been developed by any reasonably competent “person schooled in the arts”, given enough time. So if the Chinese are copying Vista without paying for it, then that’s more about copyright than about patents. It is perfectly possible to be in favour of the former while being skeptical about the value of the latter.[/li][/ul]
Why should they be able to make money from their ideas, if they’re not willing to do any of the hard work of productizing it? Coming up with cool ideas for new products, or for new features to existing products, is usually not the hard part. I work for a company which is a recognized leader in a particular category of consumer electronics, and we have enough ideas for new features floating around the company to keep us busy for the next decade or two. We don’t need more ideas, and we just get annoyed when some outsider comes to us with something which we have already discussed many times internally, but have not quite gotten around to implementing yet, and then expects us to shower them with gratitude and money.
The difficult part is turning those ideas into a working implementation. As Edison famously said, invention consists of 1% inspiration and 99% perspiration. Unfortunately, the patent system makes it far too easy for the people who have nothing but inspiration to hold the perspiration guys hostage, and demand a fee for their neat-idea-in-the-shower which is far out of proportion to their actual contribution.
I “invented” a TiVo-like device when I was a teenager. That is, I came up with the idea for such a product, and even did some fairly detailed calculations for the kind of processing power and storage space that would be needed, etc. I calculated what it would cost to mass-produce such a device back then (early nineties, I guess) and concluded that it wasn’t viable yet. I never did anything else with the idea, and a decade or so later, TiVo actually produced such a device and became quite successful. Should I be able to demand money from TiVo for “stealing” my idea, even though they undoubtedly came up with it by themselves, like undoubtedly many other people did? Of course not. They did the work, they deserve the profit.
In my own line of work, I indeed prefer to stay away from patents. I just try to come up with the best technical solutions I can think of, and let the legal department worry about whether we are legally able to use them. However, I have read patents in other software-related fields – although, to be fair, often in the context of some story in the news about a particularly blatant patent troll, so maybe that gives me a skewed impression of how nonsensical the average software patent really is.
I’m not against all software patents, but I believe that in general the patent system does more harm than good in our industry. A good example of a patent (now expired) which I considered legitimate, was the RSA cryptosystem. That was unquestionably revolutionary, it was far beyond what an “ordinary person skilled in the arts” could be expected to come up with, it may not have been independently re-invented for several decades, it represented a great amount of research and development work, and without the patent they would not have been able to make a fair return on their investment. (That’s not to say that the invention would not have happened without the patent system – people like those who invented RSA tend to be motivated by intellectual curiosity first, and money a distant second. So from a social-good point of view, it may have been better if they had not been allowed to monopolize it. But they deserved to make money from their invention, so I’m glad that the patent system allowed them to.)
However, for every RSA-type invention, there are a thousand patents which either do not represent a technical innovation, or “flying car” patents where the applicant is no more able to build the thing than my mother is, but if somebody should manage to build such a thing during the next 17-odd years, he’d like a cut of the profits anyway. Stuff like “a system to do X over the Internet”, where X is something which has been around for centuries (e.g. auctions, stock trading, selling pet food) and there is no specific technical problem-solving involved with doing the same thing through a website; it’s just a matter of regular software development which anybody could do.
I guess what makes the software industry special in this regard, is that it has such a spectacularly low barrier-to-entry, compared to other modern industries. Two or three smart young guys in a shabby apartment working on second-hand PCs, can pretty much compete on an equal footing with the Microsofts and IBMs of this world (at least, they could in a world without patents). And there’s plenty of people who do just that – heck, there’s people out there writing entire operating systems and other high-end stuff from scratch and then giving them away for free, just to prove that they can! So I really doubt that there’s anything the government can do to artificially “stimulate innovation” in software development beyond its natural rate.
The Eolas story is a bit more complex than your typical patent troll case, but I still believe they should not have won their case.
Eolas was one of the first companies to show a working implementation of downloadable plug-ins for a web browser. They may even have been the first – I don’t believe they were, but they managed to convince the judge and jury of that, so let’s grant them that for the sake of the argument. They approached Microsoft and offered to license their technology, but MS decided to go with their own browser plugin solution based on a different kind of technology, as did their major competitor Netscape.
So why should Eolas be granted a monopoly on the general concept of downloadable plug-ins? I very much doubt that they invented the concept – each of the major browser developers was already working on similar technology at that time. Just because Eolas was the first to show a working product, doesn’t mean the development would not have happened without them. Microsoft went with ActiveX, which was a natural evolution of its own COM technology, and Netscape used Java applets, based on an existing platform and programming language originally developed for mobile phones. As far as I am aware, neither company “stole” anything from Eolas; the basic concepts may have been similar but the implementations were quite different and were developed independently.
So, while Eolas may have been one of the first to develop a working prototype of this concept, and they even turned it into an actual product, they were never very succesful with it, and they did not manage to convince any of the major browser makers to use their technology. They are just one of the many could-have-beens that litter the IT landscape. So why should they be rewarded for their failed attempt? Since when does capitalism guarantee anybody a profit just for trying?
And now, Microsoft and Opera have been forced by Eolas to disable parts of their own, independently developed browser plug-in technology, to the obvious detriment of the users of those browsers. Also, the award of half a billion dollars in damages to Eolas in their lawsuit against MS, sends a clear signal to other companies big and small: that if you build something and successfully go to market with it, sooner or later you will be sued for patent violation and you may very well lose, even if you never knowingly stole anything from anybody.
After all, if even Microsoft is unable to defend itself against a little company with a patent and a ten-year-old proof-of-concept implementation of an obvious concept, then what chance do you and I have? Half a billion dollars isn’t pocket change for Microsoft either, but at least they can pay up without going bankrupt. A smaller company might as well not even try to enter the market. How does this stimulate innovation?
I think there is a legitimate question regarding whether software developments are true inventions in any sense. Once you get an idea, you get someone to write the code. There is a legitimate argument, in my mind, that that the concept of novelty should be fine-tuned, to require some kind of technological or scientific breakthrough or some kind of physical rather than just conceptual implementation.
There seems to be some level of consensus developing that patents are crucial in an industry like pharmaceuticals, but are probably detrimental to software. It might be, if we consider the issue, that software shouldn’t be considered patentable subject matter in the first place. (I think Eli Lilly said as much in a recent amicus brief.)
I have a few software-like patents, and they are written as physical implementations on a computer. The fundamental problem is that algorithms are not patentable,. but an algorithm put on a computer is. Yet not allowing anything with software to be patentable would exclude anything with a processor as a controller, which includes most new gadgets.
The other problem is that determining violations for some software is more difficult. Say you have patented some nifty compiler optimization technique. How do you tell, by looking at code produced by a competitor’s compiler, if your patent has been infringed? I ran into a very similar case.
This problem is not unique to software - it happens with many method patents. For that reason, product patents are often considered to be more valuable (but sometimes a method of making is all you can get - for example a new, improved way of making an old chemical).
As every researcher should know, correlation does not imply causation. Otherwise, since the U.S. does indeed generate its fair share of innovation, you could also conclude that obesity causes innovation.
However, a lot of people agree that the U.S. software industry manages to survive despite its out-of-control patent system, not because of it. The MIT study I linked to earlier (PDF), makes a convincing case that the amount of research and development in the U.S. software industry went into a sharp decline after the courts strengthened patent protection for software.
