Innovation is happening at a breakneck pace despite software patents because everyone is just ignoring them and inventing anyways.

The patents do damage after the fact, killing good tech jobs by diverting money from engineering and R&D to the zero-sum game of patent litigation that just leaves society as a whole poorer.

TBH, I don't know how many entrepreneurs opt out of entrepreneurship due to the risk of being sued down the line, but I doubt that it is very high. Most of the entrepreneurs worried about patent litigation will just start amassing a patent portfolio of their own as a defensive strategy. The end result of that game is less progress since innovation efforts are diverted to patent defense efforts.

I don't know about everyone else here, but I would love a conversation on a national scale to discuss jobs that don't move the country and humanity forward, but just move cash from one pocket to another without benefitting anyone but the people moving the money. Wall street financial innovations, patent litigation and the TSA are just three examples of areas that have experienced job growth in the past 20 years (even with the 2008 meltdown), but that do little to nothing to improve the human condition. For some reason, the more we automate jobs and increase the productivity of the American worker, the more we divert our attention to creating jobs that don't add value.

That's not zero-sum.

The problem here is that this kind of mechanics can suck up unlimited amounts of money for little absolute value, as you're paying for the relative - to just get better than your opponent. It's the same problem as with political campaigns - a ridiculously huge waste of resources with no theoretical upper bound, just to influence how people choose between few available options.

"Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!"

On the second thought I think this might just be a sign of my confusion in the topic. I somehow always conflated the two ideas into one.

It is the same reasoning why paying people to dig holes and fill them in isn't actually economically stimulating. If the fruits of labors expended serve no practical purpose, they are an effective money sink that slows down the economy.

unfortunately, the patents purchased are not likely to be useful (in the sense that the creation of that patent brought value), and i think this is especially true in software patents. I say so because i expect that those patents purchased are already used by various software engineers (probably unknowingly). The creation of those patents did not add value, due to the fact that no creative forces were involved.

In a real arms race, the race to produce weapons might induce economic activity because metal needs mining, manufacturing and jobs. This does stimulate the economy, and you can construe that theres some benefit to be had.

For software patents, it does not stimulate anything! Perhaps lawyers who gets paid drafting it, but actual creative output isn't there, and so it is a net drain to even create the patent.

That may very well be the case; I was clarifying the incompleteness of the argument, not advocating software patents.

"In a real arms race, the race to produce weapons might induce economic activity because metal needs mining, manufacturing and jobs. This does stimulate the economy, and you can construe that theres some benefit to be had.

"For software patents, it does not stimulate anything! Perhaps lawyers who gets paid drafting it, but actual creative output isn't there, and so it is a net drain to even create the patent."

Please explain the difference between paying a lawyer to write a patent that adds nothing, and paying someone to dug up and manufacture a bullet that sits in a chest somewhere, serving as a deterrent.

Two things I can see are 1) the people being paid to mine and machine are probably less well off than the lawyer, so there may be an (arguably) helpful redistributive effect; 2) mines and machine shops have huge fixed cost - having invested that, other tasks may be able to piggyback. I am slightly hesitant in concluding 2 - while the effect itself seems reasonable, I may simply be unaware of useful infrastructure supporting the patent process. Is there something additional that I am missing?

A stout defender of the status quo.

http://en.wikipedia.org/wiki/David_Kappos

The accumulation of such 'societal overheads', as entrenched systems act to grab more resources for themselves at the expense of everyone else, is a common factor in all civilizations. Specifically, it's a common factor in the process that ultimately leads to the collapse of complex societies.

Read the book 'Collapse of complex societies' by Tainter. It's a study of failed human societies throughout history, and the common factors in their process of collapse. Yes, it turns out there is a single, driving common factor. Complex societies go into violent, chaotic and permanent collapse, at the point when their available resources (of all kinds, including manpower, energy, knowledge, food, water, etc) become less than the resources required to maintain the social infrastructure. At that point there's a rapid structural implosion, with failing infrastructure leading to inability to allocate resources to maintain the infrastructure - a positive feedback process that bites hard. Usually, almost everyone dies.

The snowball can begin when some external challenge requires an extra expenditure of resources - which are not available. Or it can begin simply because the social structure grows too complicated and parasitic, thus exceeding physical limits. Human societies almost never seem to be able to collectively say "hey, we don't need all this useless crap, let's simplify!"

The patent system, copyright, and indeed most if not all of the Federal Government and related structures like the Federal Reserve Bank (three things it actually isn't) as they are now,are all examples of wasteful, parasitic overheads with net negative benefit to American society. Which are major factors bringing society closer to systemic collapse. The energy crisis is rapidly lowering the 'available resources' ceiling, while all these parasitic, self-serving layers of social/legal complexity are inexorably raising the required resource expenditure. Maybe these lines on the graph have already crossed - there's some inertia and lag in this process, but it's still a mathematical reality that can't ultimately be avoided.

Personally, I consider the entire legal framework of corporate personhood, stock holding and the abstractions of social responsibility, finance and control that creates, to be another massive layer of harmful complexity. Creating 'inhuman' immortal entities which then grow to direct most of society's resources and control most of the media and government structures, seems like a very, very bad mistake. The present insane state of the patent and copyright systems is merely a side effect of that more fundamental error.

By now the entire corrupt, self-serving octopus of corporate/government parasitism is probably too entrenched to 'simplify' back to a sensible, workable level via methods available within the existing system.

Personally, I'd say the optimal level for such things would be 'gone entirely'. I'm aware most would not agree. I've also long felt that without a second American Revolution, there's no chance of making any progress in cutting back these existence-threatening layers of self-serving complexity. Lately it seems like I'm not so entirely alone in that view.

  ...Federal Reserve Bank (three things it actually isn't)...

Also way back in 2004, Alan Greenspan, then chair of the fed, questioned patents. http://www.federalreserve.gov/boarddocs/speeches/2004/200402...

Even those that don't hate the fed can get behind hating patents.

Although the reasoning doesn't exactly follow, it does still say something important: that the patent system isn't totally breaking innovation. In other words, he's saying that we have something to lose, and he's right.

You can make a strong argument that we won't lose it, and I'd agree with you. But it's not exactly proven. Actually, I don't think it's a simple win or lose situation, I think that patents (or the lack thereof) change the nature of things invented, and it's hard to quantify whether it's better or worse.

This is like saying it wouldn't be so bad to be blind because blind people are able to live fulfilling and experience-rich lives. Yes, that is true, blind people do live rich and fulfilling lives, but this says nothing at all about the richness of the lives they could be living if they were not blind.

We have fewer than five large companies dominating the smart phone space. Let's ignore for a moment the fallacy that because smart phone innovation is occurring that therefore all innovation is a-okay. There are no small players in this space. This is like American car companies before Tesla and the other new electric companies got started. We know from experience that the domination of an industry by a few large players does not lead to innovation in the long term. It leads to tit-for-tat competition with little novel exploration of the space of possible products. These companies become conservative and self-concerned.

I think if you do any research into the current patent system, you will find it self-evident that the situation is untenable. Amazon holds a patent on "one-click ordering". They own a 20-year patent on the notion of only needing to click one button to make a purchase. Apple was just granted a patent on "searching across multiple databases simultaneously". The absurdity of the situation is apparent.

We are already in a period where large companies can use their patents to crush startups. It does not matter if the patent dispute is spurious and the startup clearly within their rights. Large companies with in-house legal staff can drown a startup by requiring them to fork out enormous quantities of money for legal representation in their self-defense. With a suite of patents, a company like Apple can bring suit after suit until finally the small company either loses one (these things are not decided by engineers or experts in patent law, they are decided by juries, a curse and a blessing), or runs out of money. This is analogous to the libel/slander situation in Britain, in which the cost of defending against a libel suite is enough to ruin a journalistic enterprise.

Read about what happened to Vlingo, as the situation I just described has already occurred: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...

There's a horde of small players in the space. They've been dropping like flies, but there's a steady stream of new entrants both on the handset and software sides. Most of these new companies will fail as well. But it's not because of patents, it's because there are big economies of scale and the network effects are even bigger.

This argument shouldn't even be at issue. Of course we're seeing very rapid innovation. The question is whether that's because of or in spite of the current patent regime, which is very hard to answer. People like us see the harm that bad patents can do and decide one way.

Other people look at (1) the fact that there is rapid innovation in the market and (2) the patent system was designed to foster innovation as evidence to the contrary. You're not going to win these people over by claiming that patents are "killing" innovation. All they have to do is look in their pockets to see that you're wrong.

  > How many companies are in the current YC round again?

not to distract from the threads theme of misinterpretation, but no, not quite. it's more like saying "being blind doesn't completely ruin your life".

I was already convinced that the patent system needs reform.

Rarely is it the case that anything is truly "total". And if the patent system is squashing 25% of innovation in the software industry, or even 10%, that is a big problem.

Also, it is possible to squash certain kinds of innovators - like startups without tens or hundreds of millions of dollars to spend on patent litigation. While massive corporations can get nailed for a billion or two and hardly notice.

A patent-litigious environment is deadly for startups. And startups are crucial innovators.

But his argument was clearly fallacious. In one sentence, he implies that correlation proves causation, followed by an attempt to frame the debate on his terms by definitively dismissing the claims of the opposition.

These are not tactics used in honest debate. They're being used to discredit the opposition and sway third parties.

I see that as cut and dry. If you don't, we're going to have to agree to disagree. But I stand by what I said, and its relevance to this discussion.

In other words, he says that innovation is occuring at a rapid rate, therefore the patent system isn't broken. Sure, that's not him arguing via correlation, but nonetheless that's a logical fallacy. And that's intellectually dishonest.

You can make an equally strong argument that not only will we not lose it, but we'll be far, far better off with major restrictions on what he's peddling.

But the commenter to whom I replied called the patent chief "intellectually dishonest", and I think that's a strong statement and not adequately supported.

He's either avoiding any/all arguments in that area or ignorant of them.

I am not claiming that my opinion is proven. The data does not exist to have that level of certainty either way.

I merely have a strong belief, and do not outright reject the notion that Mr Kappos could be right.

To do so would make my arguments as intellectually dishonest as his, and I believe that to be unacceptable no matter which side you're on.

The problem is that people are patenting non-innovative stuff. At this point one could write an automatic patent generator, much like domain name generators.

Or we could have the Patent-libs (like ad-libs).

Software that runs on [DeviceType] that has [ShapeOfCorner] and allows the user to [DigitalVersionOfNaturallyOccurringAction] which produces [ObviousOutcome].

Boom! Prior art to invalidate future bullshit.

Excerpt from Accelerando by Charles Stross (cstross). Emphasis added.

I would love to see some sort of legal patent pool that grants free licenses only to entities that either do not have patents themselves, or which have granted licenses for all of their patents to other members of the pool. The trick of course is getting such a pool to a critical mass that joining it and licensing all your patents to it becomes worth it.

http://www.openinventionnetwork.com/

"It requires entities licensing their patents under the DPL to license all of their patents under the DPL, with free licenses granted to all other DPL participants.[4] DPL participants remain free to launch patent lawsuits against non-participants."

So they do. Using the patents in the pool.

I would say that it is even worse than that, because the metric itself is disputed.

If the police were to start a policy of giving out free GPS handguns to anyone, they might justify it by saying that they have caught more murderers since the policy began. The metric itself is flawed, as it assumes that catching a murderer it good in and of itself, and is in fact better than preventing a murder in the first place.

Here, he is arguing that lawsuits are good in and of themselves, without looking into whether those lawsuits have a positive or negative effect. He merely states without justification that the lawsuits have the effect of ``protecting innovation.''

At this rate, I'd rather just pay an "Innovation Tax" and be done with it.

It's as though he sees litigation and prosecution as beneficial to our economy, instead of seeing the ways in which it blocks innovation and free market actions.

As a general rule, litigation is a sign of activity. The more economic activity you have, the more interactions and transactions you have, the more conflicts that arise, and the more litigation you have to resolve those conflicts. The litigation itself is of course overhead, but the fact that there are many conflicts can be a sign of an industry in which a lot of things are happening.

As I'm sure you are aware, not everyone thrives in conflict. Some would much rather design a system to prevent it. I can't help but feel that this is similar to claiming that there must be a lot of fun happening on the school playground, because a lot of bullies are beating up the kids who just want to get along (and, occasionally, other bullies).

A more apropos playground analogy might be skinned knees. They are of course not a good thing in and of themselves, but if you have a bunch of kids running around and running into each other, you're going to get skinned knees. The more kids you have running around and the more active they are, the more trips to the nurse's office there are going to be. You can make the playground safer, tell kids to be more careful, etc, but at the end of the day kids getting playground injuries is correlated with kids playing.

We could clearly today have either more or less protections: you can pretty easily imagine a system with less patents or one with more and stricter forms of legal protection. A system with more forms of protection would probably see more legal battles. A system with less protection would see more market battles with focus on winning over consumers vs juries. The system we have today isn't some divinely revealed sweet spot, so the attitude that "conflicts are inevitable and this is how we solve them, thus there's nothing we can do about it" is disingenuous.

I also disagree that conflict in the form of litigation is an unavoidable consequence of technology innovation. To a small developer, there's little effective difference between patent litigation and a bullet in the back of the head. They're both a death sentence, except the bullet would be over quicker. Instead of streamlining the process of executing small developers, courts and legislators should remove the actual threat.

I should note that, though I disagree with many of your points in many of your comments, I do value the alternate perspective you bring to patent-related discussions on HN.

So the debate should be about whether patent rights are in fact legitimate and beneficial regulations, taking into the cost of compliance but also taking into account ways in which those costs may be minimized through the structure of the law.

I think there are ways to structure the patent law, with bright-line defenses, so as to make defense of a suit extremely quick and cheap even by pro se litigants. One example would be requiring some sort of evidence of intentional copying as is required for copyright infringement.

With the penalty that both the nurse and the injured person receives $1 from the person who caused the skinned knee. You can make the playground safer and tell kids to be more careful, but you'll still see Bruno falling on purpose and blaming Mary to the nurse.

People assume that there are more of the fakers than the pushovers, but most of the studies I've seen of the legal system show that there are way more people who fail to enforce their rights than there are people trying to game the system. E.g. only a small fraction of medical malpractice claims are clearly not meritorious. On the other hand, only a small fraction of those who have a legitimate malpractice actually sue. The same is true for environmental harms, etc.

Well as a lawyer, litigation and prosecution are very beneficial to his local economy.

Not what was actually claimed. Non-inhibition is not the same as a boost, now is it?

The head of the USPTO isn't even willing to have an intellectually honest debate on the subject. It's pretty clear that change is not going to come from within.

The USPTO doesn't make patent law. It's an administrative agency. The guy's main concern is servicing the ever-increasing number of patent filings, which are what finances his agency. If you want change, ask for the PTO to be funded by taxes instead of filing fees.

The patent system is a feeding trough for parasites, little more.