When a software patent application is filed, 18 months later it is made public. Typically this is 2 years before the application will even be considered by a patent examiner.  This means that ideas are in the public sphere, the commons, for all to learn from well before any property rights have even begun to be considered for the inventor.

Most patents are rejected by the patent office.  Months ensue, and typically if any patent is attained it is for a much narrower scope than originally asked for by the inventor.  Meanwhile the key ideas have now been in the public domain for typically about 5 years–all the time fueling innovation.

Patents drive innovation because they spur inventors to try to work around and improve existing technology.  Unpatented ideas often become the basis for popularization only because they are free, and thus stifle innovation.

Consider an analogous case from another field: Why do you think the King James Bible is the most published?  Is it the most current or accurate or scholarly?  No.  Hardly.  The King James is long out of copyright. Publishers make high profits from publishing and promoting it.

Why is Apache the widest used web server?  Is it the best possible web server? No.  Hardly. It is the cheapest.

Same with Linux.  What is Linux, but a clone of Unix.  A commodity. Why is it popular? Because it is best? No. Because it is cheapest.

Have Apache and Linux spurred innnovation in operating systems? No, they have dampened innovation by making it nearly impossible for any company to make money in operating systems, and thus afford R&D investment.  Sun was the company innovating in the Unix tradition. What has happened to Sun?  It has been wiped out by Linux-based competitors, and become a notably unsuccessful and non-innovative open source company.  When is the last time you looked to Sun for leading edge innovation?  In the late 80s, before the commoditization of Unix/Linux.

Ironically, the best spur to innovation in operating systems is Microsoft Windows. Why?  Because customers are willing to pay to use it, and thus prospective competitors know they might be able to sell an innovative contender.  Who has taken advantage of the Microsoft Windows opportunity?  Apple, by investing R&D in a highly innovative advanced version of the Unix/Mach lineage, building on user interface ideas from Xerox PARC innovation.  Who has the best operating system for small computers?  Apple.

Thomas Jefferson invented the American patent system as a way to provide incentives to inventors to open up their trade secrets.  The quid pro quo was that inventors who would share their ideas got a limited-time property right to their inventions.  This has worked brilliantly in the US for 200 years.

Don’t believe the anti-patent PR. Note what companies are behind it:  IBM, with control of 45,000 patents, including 37000 directly owned in its name, and 3000 patents filed newly each year.  And Intel, whose CFO coined the term “patent troll.”  The celebrity lawyers who argue against patents, such as Larry Lessig, work for centers funded by IBM and other large patent holders.  These lawyers are not, notably technologists.  By contrast, look to real, pioneering technologists, such as Bill Joy or Danny Hillis. They are, wisely I think, supporters of patents.  Hmmm.  Think about it.

Fred’s prescription is exactly what the economics of innovation would tell us:  In a collapsing business ecosystem, the whole is not worth more than the sum of the parts.  The whole is worthless.  The sum of the parts is worthless.  SOME of the parts may be worth SOMETHING.  The way to determine if a part is worth something is to see if someone sees enough value to be willing to buy it.  Maybe Donald Trump wants the GM building in Detroit.  Or not.  Maybe Toyota wants volt–or not.  See enthusiastic support on Twitter here.

What is powerful about this solution is that it makes the breaking up and reconnecting of the ecosystem tractable.  And the pieces are selected for their value to a future that actual entrepreneurial leaders believe in enough to fund THEMSELVES and to try to accomplish through their own efforts.

The nation still has the problem of how to stabilize Detroit.  The collapse of GM, Ford and Chrysler will be an economic Katrina for people in the city.  On the other hand, perhaps better to rebuild Detroit directly.  1.  Encourage new, viable future-focused transportation companies (see Fred’s suggestion above and below).  2.  Encourage suppliers who can survive to grow within the new economic ecosystem that will be led by the new lead companies.  3.  Negotiate mortgage payment holidays to keep people in homes and to stabilize neighborhoods.  This is philosophically similar to how student loans do not have to be paid down while students are still in school.  Detroit will be in school. 4.  Tap into the strike funds, layoff funds, and possibly the pension funds of the unions to provide pay for workers.  Insist on a kind of “workfare” and have folks work on infrastructure, policing, schools and education.

Now that I think about it, an economic Katrina has ALREADY happened to Detroit–a slow, multi-year Katrina.  No bailout can change this fact.  Indeed, just as an actual bucket-brigade  “bailout” of the water in New Orleans would have been obviously futile, so a financial bailout of the auto makers is futile.  What we face is a rebuild. Let’s rebuild something worthwhile, something that is part of a future we can embrace and be proud of.

Here below is Fred’s terrifically clear suggestion. Click the link to read the whole thing:

Bust-Up, Not Bailout – Seeking Alpha
‘Bust-up, not bailout’ should be our rallying cry. Once upon a time busting up big companies was a populist movement. It’s time for that movement to rise up again. Not so much to rid our society of monopolies, but to rid our society of financial minefields that are ‘too big to fail’. I read a quote on twitter yesterday that said ‘too big to fail means too big to exist’.

And yet the government’s answer to our problems is to push for more consolidation. It’s nutty. Scale and complexity are the enemy of innovation and what ails most of the large businesses in this country, auto in particular, is a structural lack of innovation in the industry architecture.

It takes something like five years to get a new car designed and built in most large auto companies. That’s too long. I realize that designing and building a new car platform is not like hacking up a new web app. But five years? C’mon We have to do better than that.

And we need to completely neuter the auto industry’s ability to lobby our government to stop important initiatives like clean/alt energy and mass transit. It’s borderline criminal what the auto industry’s political efforts have done to our global competitive position right now.

The same is true of the financial services business, the airline business, electric utilities, and a host of other industries.

I am sympathetic to the argument that we cannot allow the entire supply chain of the auto industry to fail and I am certainly aware of how many plants will close and jobs will be lost if we let General Motors GM, Chrysler, and Ford F fail. It’s a tough call and Obama has already staked out a pro bailout auto position.

So I hope someone from his incoming team reads this and the conversations on this topic that went on via twitter yesterday. If we give taxpayer money to the auto business, it should be to finance a wholesale bust-up of the business. One PE firm should buy Volt. Another should buy Buick. A third should buy Jeep. A fourth should buy Lincoln. And if a brand can’t find a buyer at any price with a boatload of taxpayer money behind it, then it should fail.

The same is broadly true in other fields. Most biotech innovation happens in universities or small labs. Even Apple, the famous innovator, is highly dependent on small outside design firms, and a few individuals carefully nurtured in the firm, for both look-and-feel and technology innovation.

The US as a whole needs innovation.

The US needs to nurture innovative individuals.

2. The following analysis shows that strong patents are pro-innovation. I have excerpted a small bit, but please click to the full article. From Science magazine.

The author points out that patents of building blocks promoted innovation across history and across industries.

3. This puts to lie the arguments supporting a bill that weakens patent law, currently being pushed by Patrick Leahey of Vermont.

Efforts to weaken patent law come almost entirely from two groups. First, the lobbyists for very large, traditional firms. In information technology, it is the established “gorillas” like IBM, Microsoft, Google, and Cisco. Second, from policy wonks who are funded by the big companies.

These big gorilla techs named above are today’s version of the big auto companies, big plastics companies and big pharma companie, each of which tried to quash patents as they tightened control over their industries.

Big companies dominate their industries by economies of scale, by monopolies and oligopolies on distribution, and on stopping new entrants by “killing the snake while it is small” (or buying the snake when it is mid-sized).

In autos, they succeeded. In plastics and pharma they did not. In materials and in biotech there are vibrant communities of independent think tanks and innovation laboratories that make their living licensing patented inventions to larger firms or directly to the public.

The information technology industry looks more like the early auto company days than it does the early biotech days. This is because small companies in information technology have not figured out the value of their intellectual property, and how to protect it.

Big companies in information technology depend on squashing small companies, buying intellectual property on the cheap from small companies, and buying pioneering companies on the cheap. They can easily do this when the small companies either don’t protect their intellectual property (a problem in many small software companies) or open source their technology in unwise ways. Big companies are now trying to weaken the patent system before the small companies wake up to its value.

Who is taking the money from these big companies to do their bidding? Senator Patrick Leahey of Vermont–for whom John Chambers, CEO of Cisco, held a big fundraiser in Vermont. Why did Chambers, who lives in Silicon Valley, come to Vermont to do a fundraiser. You connect the dots.

Leahey is now aggressively pushing changes to the patent system that make it harder for small companies to succeed, and easier for big companies to triumph.

Leahey has, to put it bluntly, sold out.

He probably figured no one would notice. This is typically how Senators agree to sell out. They pick an issue that is important to a group of wealthy companies, and try to slip changes in unnoticed.

Shame on your Senator Leahey.

BIOTECHNOLOGY: The Patenting of DNA — Doll 280 (5364): 689 — Science
..in the USPTO’s view, new areas of technology do not create the need for a whole new specialized patent law. In many ways, the arguments currently being used for DNA sequence technology resemble those voiced 30 to 40 years ago when polymer chemistry was an emerging technology. At that time, people argued that if broad generic claims were granted on the building blocks of basic polymers, it would devastate the industry. In fact, no such disaster occurred. For example, the issuing in 1965 of a basic patent broadly claiming a vulcanizable copolymer of aliphatic mono-olefins and unsaturated bridged-ring hydrocarbons (3) did not preclude the later issuing of patents to different inventors for several copolymers of this type (4). These patents represent early examples of ethylene-propylene-diene monomer (EPDM) rubbers, which are highly weather- and ozone-resistant, stable to thermal aging, and have good electrical insulating properties. These EPDM rubbers have been commercially important as components in tires, weather stripping, radiator hoses, wire insulation, impact modifiers, and roofing.

EPDM copolymers were assembled from three basic building blocks that could be combined in many different ways and, as such, generic and specific claims to these copolymers are analogous to claims that may be issued to DNA inventions. Just as the issuing of broad product claims at the early stages of this technology did not deter development of other new vulcanizable copolymers, the issuing of relatively broad claims in genomic technology should not deter inventions in genomics. Two relevant examples of this in the field of biotechnology are the polymerase chain reaction (PCR) and the human immunodeficiency virus (HIV) protease, which were patented and then widely licensed to permit the biotech industry to continue to grow and benefit from these inventions.

The same patentability analysis is conducted for every patent application, regardless of whether the application is for a computer chip, a mechanical apparatus, a pharmaceutical, or a piece of DNA. In every field of technology–whether emerging, complex, or competitive–all the conditions for patentability (such as statutory subject matter utility, enablement, written description, novelty, and non-obviousness) must be met before a claim is allowed (5).

By contrast in software intellectual property practices are strikingly immature. This can be hard for outsiders to understand, as there is very little real difference between software inventions and analogous inventions in semiconductors, electronics, telecom and biotech.

Why is the intellectual property ethos so immature in the software industry? Mostly because software as a distinct field was so abstract as to be almost invisible until the 1980s. In the academic engineering world, software started out in applied mathematics and computer science as a field came relatively recently. In business, software was seen as a necessary part of hardware, not as a distinct product or service offering. Indeed, up until the 1980s software was typically given away by hardware companies in order to sell their (big) iron. It took an anti-trust settlement with IBM regarding the IBM 360 mainframe to force IBM to unbundle software from hardware. In the minicomputer days, Sun Microsystems was one of the first companies to see software as the basis for a distinct business–an idea that was considered radical at the time. The layered architecture of the personal computer world finally enabled software companies to form a distinct, free-standing industry.

Software patents became recognized as a distinct, official domain of invention in the United States in the mid-1980s. Telecom patents by contrast went back to the beginning of the century.

In the long history of intellectual property, software in now coming of age.

In the software industry companies large and small continue to underemphasize intellectual property licensing. The rationalized ethos of cross-licensing among companies is barely developed. Instead, firms large and small continue to come to blows on the few propery conflicts that rise to high stakes. A myriad of opportunies for licensing and collaboration on intellectual property development are ignored, and–importantly–infringement is a daily business practice.

Slowly, however, the industry is growing up. IBM sets the right pattern in some ways. IBM has long offered to license pretty much any of its 34,000 owned and 45,000 owned-or-controlled patents for 1% of another company’s “relevant revenue” (i.e. revenue directly attributable to employing the patented intellectual property). IBM typically would offer its entire portfolio for 5% of revenues. For many years, other firms found this deal attractive.

Today IBM will license most of its software intellectual property portfolio for 1% of relevant revenues in total. The thinking seems to be that most firms can expect to be licensing software intellectual property from several others. Thus 5% is probably what a firm can reasonably budget for all of its relevant licenses, so IBM figures 1%, or 1 of 5 points, is about what the market will bear for its contributions. This seems a reasonable assumption to me. In other industries, this percentage is about the norm.

We are also seeing the beginnings of a distinction in the software industry between invention and distribution. IBM, interestingly, is becoming more of a distribution firm (a systems integrator), relying on others’ ideas–while continuing its own lab, as well. Google, on the other hand, appears to be investing heavily in ideas–while developing its distribution platform.

What I think will be a most interesting next development is the rise of smaller, entrepreneurial invention firms in software. I look forward to Brookline Street in Cambridge being lined with small software engineering firms solving the hardest problems on the planet–and partnering with larger firms to take the resulting inventions to the world market.

Regarding Jon Dudas’ testimony today to the Senate Judiciary Commitee, as reported in advance by Steve Lohr in the New York Times yesterday.

Dear Steve,

Unfortunately, I need to take you to task for your article yesterday in the Times about patents.

The creation of inventions and intellectual property is vital to the American economy and the United States’ role in the world economy. For better or worse, America’s economic future depends on creating and licensing intellectual property.Strong worldwide patent rights are the foundation for American economic survival over the next fifty years.

There is a serious lack of balance in your article reporting on the Bush administration’s campaign to change the US patent system.

I hope you will understand that this letter is not a personal attack on you. You are a thoughtful, effective and experienced technology journalist. Over the years I have enjoyed talking with you and reading your pieces in the New York Times. Please consider the following as strong criticism, but intended constructively. I am blogging it because I think the issue is important, and the case requires careful examination.

I. Your article ignores the deep controversy over the Bush administration’s approach to patents. Among experts, especially in the patent bar, there is great frustration with Jon Dudas, the director of patents. Indeed, I am tempted to put “patent reform” in quotation marks when it comes to this administration, just as one is tempted to put “war on terrorism” in quotation marks. No one believes any more that the war on terrorism is uncontroversial, regardless of their point of view.

Unfortunately the Bush “war on patents” is not yet understood by the public. What the administration proposes to do about patents is controversial. That is, whether you agree with the administration or not, there is controversy among experts in innnovation and the law. You article did not report this genuine criticism.

II. To many of us who are students of the situation, the administration is motivated by the economic needs of a few companies, Microsoft and IBM in particular, hope to weaken patent protection and absolve themselves of billions of dollars of potential infringement penalties. In order to help these giant companies accomplish this, the administration and its allies in industry have manufactured a phony “crisis in the patent system.” This crisis simply does not exist.

The proposed fix, which is to make it harder for new players to obtain patents, and to weaken patent protection for existing holders, is clothed in language that makes reform seem to be in the interest of small players and small business. This view, again, is not without controversy. Your readers need your help in questioning this framing, and in making up their own minds about who is served by the proposed changes to the patent system.

The creation of inventions and intellectual property is vital to the American economy and the United States’ role in the world economy. For better or worse, America’s economic future depends on creating and licensing intellectual property. Strong worldwide patent rights are the foundation for American economic survival and leadership over the next fifty years.

III. Without taking up more of your time than is necessary at this point, let me point out an example of one-sided journalism in your latest article. You write, “Both the Senate and the House have introduced patent-reform legislation this year, amid concerns that the current overburdened, litigation-choked system is hampering innovation rather than encouraging it.”

While you are careful to put these words in the mouths of others, “amid concerns,” your colorful language and lack of a articulating the counter points suggests that there is no argument as to the assessment of the state of the system. This is not correct. Whether you agree with them or not, there are strongly differing views about the health of the patent system. Here is a contrasting view to the one you present:

1. The patent system is excellent in America. The US has the best patent system in the world, and is the globe’s leader in innovation. In the view of many and perhaps most scholars in economics, law, and business innovation the patent system is NOT “litigation-choked” but rather is working quite well.

We live in a time when the total number of scientists and engineeers working today is larger than the sum total of all past history. We are approaching what some call a “singularity” in the exponential growth of invention. The progress of progress is itself increasing in rate. Given this, it is not surprising that the patent office is going through growth pains.

On the other hand, the current patent commissioner has embarked on a number of untested initiatives that–as we will see below–may be less motivated by fixing the American patent system than fixing the problems of a few large Republican donors.

Studies show that only a tiny fraction of corporate budgets go toward legal costs associated with patents. In industries where intellectual property has long been respected, such as health and medicine, medical devices, pharmaceuticals and semiconductors, the spread between patent litigation returns and patent licensing returns is very small. To put this more plainly, it is in the interest of patent holders to license their ideas to others, on fair terms, and they do so.

The intellectual property exchange markets work very effectively to provide companies ready access to the inventions they need at a price they can afford. Inventions are licensed efficiently to companies and entrepreneurs by universities, small research-based companies, and among larger firms. The license fees in turn fund university-based and small-company-based creativity on which our country increasingly depends for advances in medicine, information technology, and other sources of international leadership.

2. The patent system works very well in software markets. Indeed, it is helping to tame companies that have been rampant abusers, and it is helping to establish a sub-industry of focused, academically-based small-company computer science research.

Bad behavior on the part of a few big players, in the context of an immature intellectual property market, is what results in the large patent disputes that make the newspapers. The patent system is working to incentivise a higher level of respect for intellectual property rights. This in turn is improving the software industry in America.

Intellectual property exchange markets have difficulty operating in immature intellectual property markets with histories of what might be called “cavalier” abuse of intellectual property rights.

Thus for example Microsoft faces many billions of dollars of unsettled patent infringement claims. Similarly, as IBM has shifted its business model from technology invention to business consulting and technology integration, it has become a vast potential infringer on patents held by others.

Finally, software-oriented venture capitalists have long told their companies to ignore the intellectual property rights of others. Infringement is the direct result of cavalier attitudes toward the rights of others, and of business models that depend upon infringement.

3. The patent system and the courts are helping the software industry mature. The goal is to achieve a healthy, efficient software intellectual property market like we have today in pharmaceuticals, semiconductors. The patent system is doing in software just what it intended to do–to help remedy infringement and drive the industry toward open, efficient licensing. The patent system provides for registered property rights that companies small and large can use to protect the fruits of their labor.

The patent system is the direct analogue of the system of real estate title that makes it possible for investors to buy and sell real estate without fighting over who has title. In the software business there are large players who are accustomed to building on land they don’t own, and they are now having to settle with the true owners of the underlying property. Let us not cry too hard for these previously untamed giants.

IV. Your article does not provide the reader with any background on the players in the story.

The story describes testimony that the director of patent office Jon Dudas plans to make today before the Senate Judiciary Committee.

1. The story simply restates approvingly Mr. Dudas’ point of view. Fully eight of twelve paragraphs are constructed of uncriticises quotes from his proposed testimony. By leaving out the context, your piece becomes mainly a presentation of administration views–not far from an Op-Ed one can imagine Mr. Dudas himself writing.

2. What is happening in the Senate? Why is Dudas testifying? What is the politics of this commitee meeting? You provide only one paragraph of twelve on this topic.

You could have pointed out that legislation to change the patent system is being co-sponsored by Senator Orin Hatch. Hatch is well-known for championing legislation that freed the dietary suppliments industry from FDA oversight, advantaging a number of Hatch contributors and allies. And, arguably, setting up the nation for confusion and potential abuse by makers of suppliments.

3. What about the companies? Who is testifying? Who is lobbying? Who is funding the non-profits and think tanks. Companies are THE central participants in this drama. In the recent, and related, case before the US Supreme Court, a number of firms lined up on several sides of the issue. You could look into the strange bedfellows of patent reform, Microsoft and IBM, who are funding the lobbying campaign.

4. Speaking of IBM and Microsoft, you mention with approval, “The patent office is experimenting with the concept of opening the examination process to outsiders, inviting public peer reviews.” You neglect to reveal that this experiment is being funded by IBM, by way of contibutions to Fordham University and the Electronic Frontier Foundation. You could have gone farther and detailed the connections among campaign contributions, support of non-profit initiatives, and lobbying by corporate interests in the software industry.

5. You quote only one outside expert, Josh Lerner of Harvard Business School. Josh is a thoughtful person with an important point of view on patents, but he is not independent. Here is a quote from his HBS web site:

“Adam Jaffe and Josh Lerner’s Innovation and Its Discontents is a new book that tells the story of how recent changes in patenting—an institutional process that was created to nurture innovation—have wreaked havoc on innovators, businesses, and economic productivity. Jaffe and Lerner, who have spent the past two decades studying the patent system, show how legal changes initiated in the 1980s converted the system from a stimulator of innovation to a creator of litigation and uncertainty that threatens the innovation process itself.”

Josh is NOT an unbiased objective third party, as you imply. He is a participant in the drama. I think it is fair to say that he is aligned with Mr. Duda, and presses him to go farther. I believe Josh himself would agree that he is a crusader for change.

You rely heavily on Josh as a source, not just in this case, but in other stories. Please consider whether you are perhaps relying overly much on one framing of the issues, if you find Josh neutral.

“steve lohr”+”josh lerner” – Google Search

V. Here for your consideration is an alternative framing of the big picture. The following framing, whether you agree with it or not, is certainly a valid way to construct this complex situation. At the very least, there IS controversy.

A few large companies, rampant infringers, are getting their due and they are upset about it. They are blaming the patent system, and have lobbied the Bush administration for relief. Unfortunately the administration seems willing to throw out a hundred years of settled law in order to help these large donors. A few senators appear to be willing to go along.

This, indeed, is a story!

Thanks much, Steve.

Best,

Jim Moore

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