What do you do as a developer in a large corporation where you have zero control over how the patent with your name attached to it gets used? The higher-ups will give you the MAD defense argument, which is fine, except that they're not restricted to that use case. They can do whatever they want, and you can't be sure that they aren't going to bulldoze over some smaller company with it later on.

> Your name on a patent makes your argument against the patent you have that much more effective.

That is crazy talk.

Here's an analogy. We're in the 19th century. Someone with analogous views to yours says an abolitionist should become a slaveholder to be a more effective advocate for abolition. An abolitionist who through an accident of birth inherits an estate with a holding of slaves might indeed make a more effective advocate against slavery because he stands to suffer immediate financial loss were slavery abolished. That is all true. But it's a completely different thing to say that a would-be abolitionist should actively try to become complicit in the very system he is trying to abolish. Or that the man who is a slaveholder by birth should expand his slave holdings in order to make his potential losses from abolition all the more staggering.

I'm not trying to say that the system of patents is analogous to the system of human slavery on a moral scale. I'm just addressing the tactical issues and whether someone who opposes a system for moral reasons should become complicit in it. There are probably many other examples I could have used, but this is the one that came to mind.

The complicity isn't very analogous. There's nothing objectionable about obtaining a patent--it's all about how you use it.

> There's nothing objectionable about obtaining a patent--it's all about how you use it.

I disagree violently. You have to consider the enormous total mass of patents in effect. The fear, uncertainty and doubt resulting from a patent being on the books is the primary drag on entrepreneurship and individual programmer freedom. Even if the current patent holder has a history of non-enforcement, I cannot assume that policy will continue in the future, or that its patents won't be bought up by the Nathan Myhrvolds of the world when the company defaults. Now, if the patent was held by a non-profit organization with an ironclad charter that grants free and unrestricted licenses to all comers, that's much better than the alternative. But it's still far from ideal. Assuming such a trojan horse strategy actually worked on a large scale, it could deter real patent reform. Stopgap measures have a way of doing that. That's what happened with the patent cross-licensing between large companies; they're only starting to complain because cross-licensing is useless with patent trolls.

It's not immoral to obtain a patent. Sure, your company's patent portfolio might end up in the hands of a patent troll. On the other hand, your company might be sued into oblivion in a year because you didn't obtain your patent. In that tradeoff, I'd file the patent. The fact that something can be used for immoral purposes does not make that thing immoral.

Your slavery comparison is also ridiculous. It is only valid to someone who already believes patents are terribly immoral. To anyone else, it comes off as Godwin-lite. I think a more apt analogy would be if you know that a university was a paper mill, but the accreditation board refused to revoke its accreditation. What would you do in that situation? You might obtain your own degree from the institution so that you can say with certainty and with credibility that the university is a sham. It would indeed be immoral to obtain a fake degree for the purpose of defrauding an employer. It would not be immoral to obtain a fake degree to strengthen your argument.

> It is only valid to someone who already believes patents are terribly immoral.

It doesn't assume you believe patents are as immoral as slavery; I already made that specific disclaimer. It assumes that, yes, you do take strong moral exception to software patents.

I work for a small company that is vehemently anti-patent even though we do enough novel work that we could file hundreds of patents each year that would fall in the top percentile of innovation among patents. The company has been around for a long time and some of our products are in very patent-encumbered areas like video and audio codecs. We do license patents from others where necessary; for example, every Miles license we sell includes licenses for Thompson's MP3-related patents.

I didn't say that you had to believe that patents are as immoral as slavery. But you already have to believe that patents are intrinsically terribly immoral before your metaphor makes sense.

And as I said, just because something is sometimes or even often used for immoral purposes does not mean it is intrinsically immoral.

> We do license patents from others where necessary

Why is this level of complicity ok with you, but obtaining a patent for defensive purposes is not?

If you're asking me personally, it's because in the first case you're adding to the ever-burgeoning sea of patents and thereby increasing drag on innovation and curtailing programmer freedom. I don't think the kind of sublicensing we do with Thompson is totally without negative consequences in terms of complicity, but it's of much lesser concern to me.

If you say so. Anyway, I guess I'll get back to my day job of writing patents.

Are you a patent lawyer? A programmer? Both? I'd love to hear your own perspective on this.

For background, my previous job was in a small group of researchers and programmers at NVIDIA. The company had a history of hardware patents but had been pushing more and more for supposedly defensive software patents when I joined. Partly in response to the infamous Creative patent on a robust technique for stencil shadows which had "coincidentally" been filed right after NVIDIA's Cass Everitt had given an invited talk at Creative on that very technique which he had discovered (and John Carmack later independently rediscovered). Anyway, for most of us in DevTech, at least half our time was spent on pure research and prototyping. A colleague in that group, Ignacio Castano, wrote a blog post on programmer responsibility and software patents that you might find interesting: http://www.ludicon.com/castano/blog/2010/11/software-patents...

Patent lawyer, yes. Programmer, not really, just sort of a tinkerer.

That blog post is of course right that a patent attorney can't really write a patent without the help of the inventor. So if you're against software patents, I think it makes sense to put some responsibility on the inventors who help attorneys write them. But I think this line hits the nail on the head: "It’s the benefit of being a good corporate employee, not being considered a trouble maker, not loosing opportunities for promotion, not bringing negative attention to yourself, not going against the tide."

Most people are not willing to put their careers on the line over principles, and that's not going to change. Maybe a handful of the most vehement will, and maybe they're good enough at their jobs to get away with it... but mostly, no. People just go along with what their bosses tell them to do.

The idea about the anti-patents is interesting, but (with that implementation) probably not particularly useful at preventing bad patents from issuing. Patent examiners don't search wikis for prior art--they mostly search the patent literature, and to some extent scholarly articles, textbooks, and things like that. So while a wiki article might be helpful at invalidating a patent in litigation years down the road (assuming the defendant found it and could prove when it was written), it's tough to imagine the circumstances where it gets on an examiner's desk and helps him do his job.

You misunderstand. Ignacio's anti-patents wiki was internal-only and meant to discourage other NVIDIA employees from filing patents for ideas he had already discovered. He was the main (and for a long time the only) software guy working on the tessellation architecture and associated algorithms for DirectX 11 and NVIDIA's Fermi chip. Thus he was something of a vanguard; other internal researchers working on the same front would be likely to make very similar discoveries even if working independently. After all, that's the nature of the overwhelming majority of patents and perhaps the single biggest reason they're a bad idea in practice even if you have no issue with them in principle.

I see. I imagine it did serve his purpose then.

> that's the nature of the overwhelming majority of patents and perhaps the single biggest reason they're a bad idea in practice even if you have no issue with them in principle

I disagree with this (and I have no idea if it's true in the majority of cases, but let's stipulate to that for the sake of argument). If it's a common occurrence that independent researchers tend to invent similar things around the same time, then it strikes me as a positive thing for the law to bestow some advantage on whoever was first. That would tend to spur innovation and patent disclosures, which is the whole point of the patent system.

> If it's a common occurrence that independent researchers tend to invent similar things around the same time, then it strikes me as a positive thing for the law to bestow some advantage on whoever was first. That would tend to spur innovation and patent disclosures, which is the whole point of the patent system.

No. The coincidence of timing is a second-order consequence of the fact that smart people when faced with problems with similar requirements will produce similar solutions. In some cases the requirements are so constrained that not only will the abstract ideas be identical but so will the concrete implementations of those ideas (e.g. write me an optimal 8x8 IDCT for machine architecture X). It is absurd that any reasonably smart fellow who happens to tackle a problem first should be granted a government monopoly on his ideas.

If the goal is public disclosure of knowledge then assuming the problem has any wider relevance it will soon enough be revisited by other similarly smart fellows, so there is little incentive for the discoverer who happened to be first to closely guard his secrets. The gain to society for granting the monopoly in this case is that the knowledge might be disclosed a little sooner than otherwise. The cost is that other and sometimes even smarter fellows cannot develop those ideas further without a license, not even in the context of pure research, never mind business.

That hardly spurs innovation. And as for that, it was never the original purpose of the patent system but is rather a latter-day tacked-on justification for it, but let us suppose that is its principal purpose. Do you see that happening? It's certainly not working in the software world. Elsewhere in the thread there was a reference to a paper debunking some of the classic supposed success stories of patents related to Watt's steam engine and Ford's windshield wipers.

Ah, but now we're just arguing about what constitutes a non-obvious invention. And I would agree that we need better patent examiners making that decision.

Sure, that is a huge and endemic part of the problem. But if that were all, I might believe something of the system could be salvaged. Anyway, this thread has grown too deep already, so let's end it here. Thank you for the discussion.

Comparing having a name on a patent to being a slave owner is crazy talk, as long as slinging around accusations of crazy talk is considered acceptable discourse.

I reject analogies in general, they rarely advance the discourse. Having a patent is having a patent. When it comes time to argue against them, being a stakeholder instead of being someone trying to tear down what society perceives as other stakeholders is going to matter to the society making the decision.

As I said before, I prefer effective protests to feel-good protests. Just bugging out of the system entirely is a feel-good approach, not an effective one. All the same patents exist, except now you're entirely powerless.

The idea of "defensive patenting" is completely wrecked by the presence of non-practicing entities. You can't bargain with patent trolls because they have no need for your IP. All you can do is pay them to go away, either before or after a jury of hayseeds in East Texas forces you to. And there is absolutely no guarantee that the patents you file while working for XYZ MegaCorp will not end up in the hands of a non-practicing entity before they expire. Even the largest companies may be sold, merged, spun off, or liquidated multiple times over twenty years.

All software patents are bad, just as all slavery is bad. And the only way to keep bad patents from being granted is to document and publish your work as widely as you can... which, of course, leaves you even more vulnerable to attack by both trolls and practicing entities.

In summary, the only way to win is not to play.

You're quite right. A patent - particularly the kind of broad process patent common to software - is almost a canonical case of a positional good. Like all positional goods, the pursuit of software patents incentivizes a classic arms race in which no one wins. The solution to an arms race, as Hobbes taught us back in 1660, is a rule of law that guarantees mutual safety and hence eliminates the positional advantage.