1. Posted by: Malcolm - 07/06/2007

   Speaking as someone who spent the period 1996-2002 running a small (under 50 staff) software development consultancy for web-based applications, and who spent the period since then as a professional public policy advocate for the ISP sector, I like to think I have some experience of both worlds.

   Speaking personally, I completely share Mr Marti’s view.

2. Posted by: Jim Harper - 07/06/2007

   It’s very difficult to be a judge in one’s own case but, as one of the TLF bloggers, I think Tim Lee, in particular, has been particularly vocal about his skepticism of patent law and practice. His patent of the week series provides pretty good examples. He hasn’t always couched his arguments in terms of the cost of lawyers, of course, but he does here and here (in the comments). Here’s Adam concerned with the legal expense of fighting unconstitutional video game laws, and pointing out how lawyers “‘who get paid far too much to make sense out of idiotic new laws like this one’” would love net neutrality regulation.

   I’m a lawyer, but regard lawyering as an impediment to innovation which is why I (occassionally, at least) object to so many Internet regulations. I’m confounded to think that TLF comes across as indifferent to the cost of lawyering.

   I wonder if Mr. Marti could provide an example to substantiate a charge that, frankly, hurts.

3. Posted by: Elf M. Sternberg - 07/06/2007

   I don’t know much about lawyers, truth to tell, but as a working programmer I can say that Marti’s absolutely spot on about innovation being essentially free. To a skilled and experienced programmer, an innovation in his or her developmental domain comes to mind positively daily. Programmers I know make dark jokes about “In my copious spare time, I’d write these programs” and “When the singularity comes, I’ll fork off instances of myself to tackle these issues.”

   Innovation is free. Software patents are not on the innovation itself, but are rewards on the time and capital investments needed to turn the innovation into a working product. What irks free software people (myself included) is that most software really is obvious, we just haven’t gotten around to writing it yet. Very little really deserves the award of “innovative” (I think many of Apple’s products do, and psychoacoustic modeling requires so many man-hours of non-fun gruntwork to get right that I might give it a pass).

   I sometimes suspect that the patent system is flawed because it’s so 19th century; no one back then could really have imagined a civilization in which so many people were so highly trained and yet had so much lesiure time that they’d damn near be tripping over each other coming up with cool new ideas.

4. Posted by: Noel - 07/06/2007

   ***Tim Lee, in particular, has been particularly vocal about his skepticism of patent law and practice. His patent of the week series provides pretty good examples.***

   Yes, but Tim should ask himself whether his own standard of non-obviousness helps inform patent policy discourse. He should also ask himself why he criticizes the rise in patent lawyers who apply scientific backgrounds to patent policy- they’re doing professionally what Tim does as an amateur.

5. Posted by: Chris Brand - 07/06/2007

   As a software developer, I know that I very often create “bug reports” along the lines of “here’s a better way to do this, when somebody has the time”, most of which never actually get done. (Now I wonder whether it’s a good idea to say that - some company lawyer might start going through their bug database looking for things they could patent).

   I also have a book at home of ideas that I might actually implement some day.

   Time/manpower is much more of a limiting factor than lack of ideas. A lot of effort goes into deciding which innovations *not* to implement.

   Innovation does indeed feel cheap in the software world. Personally, I always find it hard to read pro-software-patent arguments because they always seem to be speaking about a world that’s very different from the one I inhabit.
   As to TLF, I read it regularly and I wouldn’t say that TLF comes across as “indifferent” to the cost of lawyering. We, the readers, certainly hear plenty about the cost of regulation, and I do recall Tim equating (software) patents with regulation at one time.

   Having said that, it does seem that more of the posters here have a “lawyer-centric” than “technology-practitioner-centric” viewpoint. Now I’m off to follow the “meet your contributors” link to find out whether that impression is, in fact, correct.

6. Posted by: rybolov - 07/06/2007

   You’re so right it hurts. Although you guys don’t talk about my favorite subject of information security management, I’m rapidly becoming one of your fanboys. =)

7. Posted by: Don Marti - 07/06/2007

   Examples of “two cultures” threads on TLF:

   Patents and the Software Industry

   Fun With Greg and Tim

   A Response to Greg Aharonian

   No Evidence?

8. Posted by: Jim Harper - 07/07/2007

   Thanks, Don Marti, for providing those examples. Reading over them, I don’t see that they make the case that TLFers “hand-wave” the transactions costs of lawyering, etc. In particular, the “Response to Greg” post is one where Tim Lee implicitly, if not specifically, criticizes the costs of lawyers. (”It seems to me that a legal system that makes success in the marketplace a function of how smart your lawyers are, as opposed to how smart your engineers are, is a legal system that is stifling innovation almost by definition.”)

   Maybe I’ve misread your “two cultures” post. Am I looking at this from the wrong end of the telescope? I take it to say that we at TLF generally ignore the cost of lawyering. I actually think that we are trying to “marry up” the law-and-policy “side” with the innovation “side” (in varying degrees, of course - we’re all different people with different priorities).

   An interesting, complicating overlay to the whole question is the collapsing together of “innovation” and “invention.” (Credit to Mike at TechDirt for recognizing this issue.)

   Mr. Marti and commenters here talk about all the ideas they come up with for fixing various problems. They’re smart and innovative ideas, no doubt, but the question in patentability/invention is whether they are novel, non-obvious, and useful. Granting that they’re useful, would others competent in the field regard them as having that creative Thomas-Edison-like spark of brilliance? Or are they just the best fix for a given, admittedly complicated problem?

   In my opinion, too many things are regarded by the patent system as rare flashes of brilliance when they’re actually just good, smart solutions. There should be fewer patents granted, and less use of the patent system (with its costly lawyers) to maintain competitive advantage.

   I may have just opened a whole new can of worms. Many of our friends on the technical “side” (including commenters here) may have come to regard themselves as “inventors” - creators of patentable subject matter - when they’re better regarded as innovators who fix problems in really smart ways. I mean you no insult, friends.

   I’m most interested in whether we are really so steeped in Washington, D.C. and think-tank culture that in the course of arguing for reducing the role of lawyers, we’re ignoring the costs of all those dang lawyers!

9. Posted by: Don Marti - 07/09/2007

   But how do you build a patent office that enforces a “spark of brilliance” standard for granting a patent? What kind of patent examiner would you need to staff it? And since “brilliance” is something that’s harder to nail down than novel, non-obvious or useful, you’d be even less likely to predict the outcome of a court challenge to a patent.

   Of course, the software side is just as likely to be missing something — some important software R&D that might not have happened without the prospect of a valuable patent.

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