Subject: Re: patent trolls and X-licensors
From: "Ben Tilly" <>
Date: Mon, 5 Jun 2006 22:36:12 -0700

On 6/5/06, Stephen J. Turnbull <> wrote:
> >>>>> "Ben" == Ben Tilly <> writes:
>     Ben> But I believe that patents are counterproductive for that
>     Ben> goal.
> How in the world would you know?

Excuse me?

I said *I believe*.  You're not about to find a better authority than
me on the topic of my beliefs.

I didn't say that I have significant knowledge or evidence that should
sway anyone else.  If I thought I did, I'd have made a stronger claim.
 But my sense from personal experience with academia and from dealing
with various other social groups is that injecting money into a group
changes the social dynamics significantly in ways that are
counter-productive for cooperation.  Because of this, I'm inclined to
accept anecdotal evidence that patents tend to stifle the cooperation
that makes science work.

  For one thing, software patents,
> like democracy and Christianity, have never really been tried.  What
> we have is a patent system adapted for hardware, which has worked
> tolerably well for at least some fields like pharmaceuticals and
> post-it notes, and which has been grafted on to the software industry
> willy-nilly.  I really don't think it's realistic to hope it will
> "just go away" (many of my colleagues are in there pitching for its
> survival as expert witnesses, for one thing),

I should note that my grounds for being dubious of the impact of
patents on cooperation in academia are primarily social and
psychological.  Economics is not the discipline that I'd look to for
insight on that.

   yet rather than looking
> for and advocating achievable reforms, or demonstrating that reform
> *can't* work, which is a far different proposition from pointing to
> the problems of the current system, those disappointed in the current
> system chase a will o' the wisp of abolition from first principles,
> principles which are apparently not held by the majority of software
> engineers, let alone society at large.[1]

You're directing this at the wrong person.  I'm not advocating any
solution, nor would I claim to have one.  My opinions on this topic

 - I'm convinced that the current patent office is severely broken.

 - I don't know how to fix the patent office without seriously
increasing the cost of patents.

 - I'm horrified at how the court system and patent office have
extended the patent system into novel areas without public discussion
and review.

 - I believe that the political system is messed up enough that public
discussion and review would be unlikely to improve much on the court
system's bad choices.  Though I hold out some hope that continuing
abuses by patent trolls may change that.

 - I'm not convinced that patents are a universal evil.  Not even
software patents.

 - I believe that patents impede normal academic research.

> For abolitionists, the exercise that Tom is conducting should be
> viewed as an *essential* first step in demonstrating that patents
> *can't* work, for example, and pointing to problems in the *existing*
> system is not an answer to the questions he's raising about a possible
> alternative.

Tom has said a tremendous amount, and if I wade through it I'm
unlikely to draw the right conclusion about what part of it you're
thinking of.  Which exercise of Tom's are you talking about?

> For another, you give your example of wavelets; it's easy to count
> *current diverted effort* as a fraction of *current effort*, but how
> do you know how much effort would have gone into wavelets had there
> not been patents?  How do you know that effort would have been devoted
> to commercializable products as opposed to leading candidates for
> Proxmire's Golden Fleece award?  The Golden Fleece award is not a joke
> on the occasional outlier, you know; it was an attempt to throw light
> on rampant "abuse".

Given the fact that wavelets arose in several areas simultaneously and
have enormous practical applications in multiple areas of science, I'd
have been shocked if the normal scientific process failed to explore
the topic.

As for "commercializable products", I'd rather see wavelets show up in
open standard and free software products.  Conversely I saw things
demonstrated in the mid 90s that I've never seen see the light of day.

Here is one huge problem with patents that I just thought of which no
simple analysis can account for.  I have noticed that good ideas tend
to arise in the wrong organization to take advantage of them.  The
famous example that people like to offer is Xerox and the GUI.  But it
is not isolated.

When you offer those organizations the protection of patents, the
natural tendancy is to reflexively patent every idea that comes along.
 Which then means that those ideas are now left to rot in
organizations that simply can't pursue them for one reason or another.
 (For instance the market opportunity in the products described by the
patent is too small to interest a mature company.)

For a demonstration of the opposite way of handling innovation, look
at Silicon Valley.  Sure, lots of companies in Silicon Valley have
tons of patents.  But look at the source of all of that economic
activity: startups.  How many startups are started by people who had a
good idea while in the wrong organization who then create the right
organization to take advantage of those ideas?  Lots.  I think it
would be more without the patents.

> I don't agree that it's abuse; I think giving research junkies enough
> money to keep body and soul together, and maybe keep a lab furnished,
> is the right way to fund science.  Who cares vhat zey discover? sez
> Werner von Braun.  As long as it's at least amusing.  But it's not a
> straightforward path to economic value.  Nor do I think the government

Why does it matter how straightforward a path it is to economic value?
 I'd rather an indirect path to great value than a direct path to
moderate value.  And the history of science strongly suggests that
scientists create great value in unexpected ways when they are left

> can pick good commercializable[2] projects.  That leaves providing
> incentives for the scientists and engineers themselves to
> commercialize.  As Miles Bader's .sig says, "99% of everything is
> grunge".  That is surely going to apply to patented research results,
> too.  But at least the researchers at the scene of the crime have a
> better chance than bureaucrats in Washington---or Tokyo---of assessing
> which are going to work.

I sympathize with this point.

> I don't believe those incentives are really there, in general anyway,
> without some form of intellectual property.  I can tell you that in

While it isn't in a legal sense, in a very real sense being able to
put your name on something as its discoverer is a form of intellectual
property.  And it is a valuable enough form of property to be able to
drive research.

> Japan, the recent emphasis on patenting and licensing (starting about
> 5 years ago), combined with the government's severe budget problems,
> has had a galvanizing effect on a lard-assed academic research
> establishment.[3] The useless wankers still have the upper hand,
> because the primary source of research funding is still grants awarded
> by committees of academics.  However, it's changing rapidly because
> it's clear that ten years from now most applied research programs that
> require more equipment than a couple of PCs and a 10-seat Mathematica
> license are going to need to supplement grants (both from the
> government and from the private sector) with licensing revenue.  The
> galvanizing effect is being communicated to "pure science" fields as
> well as the fields with potential commercial application, and it's a
> good thing.

About the useless wankers, there are many variations of this quote,
but the version that I first heard was, "First rate mathematicians
want to be around other first rate mathematicians.  Second rate
mathematicians want to be around third rate mathematicians."  I
suspect that Japan's research bureaucracy may have many second rate

> The jury is still out on whether it's good for Japanese science and
> engineering as a whole, of course.  It might have been better to just
> fire all of us, and send the good students to Stanford (or if
> necessary, Harvard, if they can't get into Stanford or Berkeley :-).
> But my own assessment is that, at least for the next 20 years in
> Japan, it's "just what the doctor ordered."


Of course that would leave Japan with the problem of figuring out what
to do if (IMO when) the US academic system goes down the crapper.

> Footnotes:
> [1]  That said, I think the likelihood is high that abolishing
> software patents is what we'll come to in the long run.  It's just
> that it's *far* from an open and shut case.

This I'd prefer over the current situation.

> [2]  Good != commercializable in my lexicon.


> [3]  IIRC, MIT alone has hosted the research leading to as many
> science Nobel prizes as the entire nation of Japan.  I'm not counting
> the economics and medicine prizes (in the former Japan has zero; it
> has several of the latter).

No qualifications needed. talks about the 12th
Japanese citizen to receive a Nobel prize.  It happened in 2002.

On I count more
Physics Nobels than that from people who were employed at MIT.  (ie
Their association was more than, "earned a PhD from MIT".)