More feedback: Patents

Some people asked about how I feel towards open source, and more specifically how I would feel if someone created a word processor that implemented all of the ideas of Microsoft Word.

Well, open source has many flavors. To the extent that open source is about people working together, contributing their time and effort to build something, I think its great. That's what I do all day too after all. In the case of open source, the contributors may or may not get paid for their work - that's a personal choice on their part (just as it is personal choice for me to give some of the money I earn to charity). Because some people choose to give to a community in this way doesn’t make their activity any more virtuous than those who choose to give in another way in my mind.

I do worry that there is some naïveté in the open source community now though. As some of the people who comment here mention, as soon as something moves from being a hobby to something that can make money, innocence is usually lost. Right now, I think it is clear that some major players in the business world who make their money in other ways than selling software are taking advantage of the open source movement. That may not be a problem for many, since one view is that they are just more people taking part in the open source movement, but I don't think you can say any longer that open source is unencumbered by commercial interests, which is what I thought part of the movement was about. Remember that before Microsoft (BillG is actually famous for insisting that software has value), software was considered just a no-value part required to make hardware run. “free“ software helps companies that make money from consulting, services and hardware, by lowerign the parts cost of the the software to near zero, and they are taking a free ride on the open source movement. I donlt think there is anythign inherently wrong with that but the idea that this activity is somehow more virtuous because it is related to open source than is developing and selling software as a business confuses me. I think many open source advocates are sad to see it happen - although one could argue it is sort of required for open source products to move out of the hobbyist world and really go places. Certainly software comapnies can't get fully behind open source (especially the GPL), since it is anathema to their business model. So it has to be the hardware and services companies. If the open source people fully realized that they are effectively working zealously and for free to help one type of corporate entity over another, would they still be so dedicated to donating their time and energy? Interesting to ponder.

There are many different kinds of open source licenses. I don't have a problem with any of them - but things like the GPL need to be treated with caution by anyone hoping to build software in that area and later make money from the software. That shouldn't be a surprise to anyone, since the goal of the GPL was to make it hard to "own" software rights and therefore to make any money from it directly (services, support and consulting aside). Other types of open source are more about sharing and less about enforcing that sharing on everyone, and that's fine too.

As for implementing all the ideas in Word in a "clone" word processor, that starts to fall into the area of intellectual property. I think there is a growing awareness recently that the idea of intellectual property has taken a bit of a beating. Thanks to technology, it has become remarkably easy now to trample on the rights of artists and other creative or innovative people. So because it is easy to "steal" music, movies, software, etc in this way, a lot of people have started doing it, and then by mob mentality rules, it has become acceptable behavior (in some circles). Note that the same sort of behavior happens during a riot - if the rule of law breaks down, and breaking the law seems to be so easy and punishment seems unlikely, a certain type of person breaks the window of the nearest store and starts hauling off TVs, stereos, jewelry, whatever. Then if that person is not caught, the onlookers move in, and you have a looting session. While it is happening, people who resist are told they don’t get it, and they're missing their chance because this stuff is "free". Afterwards, most people recognize that the whole thing was not a sustainable activity, but at least it only went on for a day or so.

A subset of people argues what I would call the "Robin Hood" argument. Essentially, it is Ok to steal, as long as the entity being stolen from has more money than you. The more money they have, the more Ok it is to steal. To me this is equivalent to communism, but not enshrined in law. In effect the philosophy is that resources should be equally shared across the population. My mother brought me up to think that stealing is stealing. Stealing because you don't like someone or because they can survive it doesn't make it any better.

The USA and other countries have supported the idea of intellectual property ownership since nearly the beginning of the industrial era because they recognized that for someone to innovate they need to have protection for their ideas. If anyone can simply steal your idea as soon as you mention it, then why bother coming up with the idea? That's why the police need to exist - to protect the rule of law and allow commerce and basic life to work properly. Now, some might say that they personally would develop and offer their ideas freely even without remuneration. That's fine - but most others would not, and in any case, a sustained effort to develop something hard to develop is only done if you can expect a return on investment, or if you are treating the whole thing as a hobby, and you have a "real" job that pays you what you need to survive. If you doubt that, then you might want to take a quick economics refresher course. Capitalism, while not perfect, provides a system whereby individuals or groups of individuals are rewarded for taking risks, working hard and being creative. The alternative - where everyone contributes as they can, anyone can take an equal share, and no one benefits from providing input or value above and beyond what is expected is known as communism, and has been shown to provide a relatively small economic engine compared to one hooked up to individual interests.

One of the methods for protecting intellectual property is the patent system. Now, everybody hates the patent system. After all, it is pretty broken. The original idea of patents (I gather) was to promote the spread of ideas and inventions. With no protection for ideas, inventors resorted to secrecy. e.g. the exact method by which a chemical was made was kept secret and locked up in a factory vault, so that society could not benefit from the idea except to the extent that the inventor used it himself. The patent system offered what seemed a reasonable proposition. In return for explaining the idea in great detail so that others could understand and use it, the inventor was protected for a period of years where they had exclusive rights to use the idea, or to license it to others. If someone stole the idea, the inventor had legal recourse.

Well, fast forward to “now”, and the patent system is used almost entirely differently. At Microsoft, we used to pay little attention to patents - we would just make new things, and that would be it. Then we started getting worried - other big competitors (much bigger than we were at the time) had been patenting their inventions for some years, and it made us vulnerable. One of these big companies could dig through their patent portfolio, find something close to what we had done, then sue us, and we would have to go through an elaborate defense and possibly lose. So Microsoft did what most big companies do, which is start to build what is called a "defensive" patent portfolio. So if a big company tried to sue us, we could find something in our portfolio they were afoul of, and counter-sue. In the cold war days, this strategy was called "mutual assured destruction", and since it was intolerable for all parties to engage, it resulted in a state called "détente", or "standoff". This is what you see today for the most part in lots of industries.

There are lots of other problems with the patent system. For example, Microsoft gets "submarined" quite often. A small company or individual has an idea, which they patent as quietly as possible. Then they sit back and wait (years if necessary), until some big company develops something (independently of course) that is sufficiently similar to their idea that they can surface and sue us. I have been involved in a couple of these, so I can speak from experience. The people involved often never had any intent of developing their idea, and they also make sure to wait until we have been shipping a product for several years before informing us they think they have a patent on something related, so that "damages" can be assessed as high as possible. This simply makes innovating the equivalent of walking into a minefield. This doesn’t seem to be helping the process of moving humanity forward.

Another view is that big companies patent lots of things, and then by the implicit threat of suing the "small guy", prevent innovation from moving forward. In practice this is harder than it sounds, since the damage to the image of the company can be considerable if it tried to sue a small target - that's why you rarely see it happen. I think this works both ways of course as I described in the last paragraph. Basically whoever has the patent has the power.

Another complete perversion of the original patent system is that because there are triple damages if the plaintiff can show the infringer knowingly infringed on a patent, there is a huge disincentive to look at the patents on file at the patent office. If you do a "patent search" to see if what you want to do is patented already, and you find nothing, you are still liable for triple damages if someone sues you and can show that you looked at their patent. This matters because even if you think their idea is irrelevant, a court may not agree with you. So the only safe thing to do is not look. So much for the patent system working to share human ingenuity.

Patents on software run afoul of the system particularly badly, since there is so much going on in software and the competition is so fierce, and so much money at stake. A lot of patents are being filed. It is clear to me at least that the patent office is overwhelmed, and a lot of shaky patents are being issued. And patents have a long lifetime - that comes from the slower pace of industrial development in the past or in other industries (e.g. pharmaceuticals). In software though, a lot of technology is ancient history before the patent runs out. But as long as those are the rules of the game, we have to play by them, while working to reform or modify the patent system to adapt to changes.

On the other hand the patent system, flawed as it is, is still better than no patent system. Some people say the current patent system is biased in favor of one constituency or another, but the one thing in common is that the people with the ideas are protected in some way. Without the patent system, we would return to the world where there is no way to protect your invention, so any clever idea can be immediately ripped off and sold for cheap. A world like this would actually favor any organization or country that can muster the cheapest possible manufacturing or development resources - certainly not the individual or corporate inventor that the patent system is trying to help.

So back to the question. Imitation, as they say, is the sincerest form of flattery. Borrowing other people's ideas is as old as humanity, and is common in the business world too. But copyrights, trademarks, patents, etc have grown up as society's ways of protecting the investments that people make, so these need to be respected. Would I like to see a world where I and my colleagues do loads of research and hard thinking to develop something new and creative only to have it copied and devalued immediately after we made it available? Hardly. But that's why we have these intellectual property systems, flawed as they are. I love competition, so if someone is out there putting some heat on us, that's great. As a designer I'd prefer it if the competition was creatively moving the state of the art forward rather than cloning us, but I don't get a say in it I guess :-). I am also quite confident that we can stay far enough ahead of cloning efforts to show the value of our products.