Muli Ben-Yehuda's journal

December 11, 2005

patent ambivalence

Filed under: Uncategorized — Muli Ben-Yehuda @ 10:23 PM

I am expected to file patents. The number of patents I file is considered a measure of my innovation; each patent filed is handsomely rewarded with cash; filing patents is one of the things I need to do in order to advance professionally.

I am expected to hate patents, especially software patents. They stifle innovation, are used to stifle competition, and are generally evil.

If I won’t file a patent, in all likelihood, someone else will. At least my patents are not trivial. But a lesser evil is still evil.

What’s the right thing to do?

I filed 6 patents in 2005.


  1. The right thing is to file them. So long as you know that what you are patenting is not trivial; that there is actually something concrete behind it.
    That is just my $0.02

    Comment by the_p0pe — December 11, 2005 @ 8:38 PM | Reply

    • Thanks. That’s my current course of action, but obviously, I’m not entirely in peace with it.

      Comment by mulix — December 11, 2005 @ 10:03 PM | Reply

  2. work
    I think that when you work for a company you need to follow that company’s guidelines or if you are in a position to change them change them or resign.
    In other words, if you are employed by a company and receive money from them then you have to supply what you signed for or renegotiate your contract or resign.
    However, what you do when you are not on the clock is non binding and you can do whatever you want.
    Also, don’t think a patent is a bad thing. A patent has a limited lifespan which is contrary to secrets which don’t have any lifespans (industrial espionage, etc…) or copyright which doesn’t seem to have any practical ending either.
    Really a patent is a license to use it without fear when the patent expires.

    Comment by linjunky — December 11, 2005 @ 8:54 PM | Reply

    • Re: work
      Patents is one of those things that are in a grey area. Ideas and innovation are fine and expected; whether to go the extra mile through the patent process is usually up to one’s discretion.
      The concept of telling someone else “this is what I’ve done, but now you can’t do it without paying me” is contrary to most of my beliefs, which is why I have such a hard time with patenting things. However, that’s not quite accurate. What’s really happening here is “this is what I’ve done *on behalf of IBM*, and now you can’t do it without paying *IBM*” makes it a slightly easier frog to swallow.

      Comment by mulix — December 11, 2005 @ 10:07 PM | Reply

      • Recouping investment in R&D
        Patents were originally (not historically but conceptually) conceived to solve the following problem.
        You have an idea for invention. The invention will be useful for several people. However you won’t personally profit greatly from actually using the invention.
        To develop the invention, you need to make a big investment. Without other people participating in the investment, you cannot economically justify the venture.
        Patents are a means for getting the other users of the invention to pay their share of the cost of developing it (cost – includes also opportunity cost, motivating compensation, and participation in the cost of failed R&D ventures carried out by the inventor).
        Free Software, for example, needs no patents because the developer derives a big profit from merely using the software, without the need of other people participating in its development cost (or, in the case of GPLed software, they participate in labor rather than in money).
        Currently, patents are abused in some fields of technology, such as software patents. A better system is necessary to allow an inventor to take economic risks when investing in development of an invention. In the software world, GPL does very good job when several people can contribute work to the development.

        Comment by tddpirate — December 12, 2005 @ 5:59 AM

  3. Sword or Shield?
    The question is whether the patent is going to be used as sword (for attacking other business entities) or as shield (to defend against aggressive patent owners and as a bargaining chip in cross-licensing arrangements).

    Comment by tddpirate — December 11, 2005 @ 8:59 PM | Reply

    • Re: Sword or Shield?
      Judging by IBM’s conduct so far, definitely shield. But who knows what will happen in the future…

      Comment by mulix — December 11, 2005 @ 10:07 PM | Reply

  4. I need to file more. 😦
    I just file patents I know are unenforceable. 🙂

    Comment by taral — December 11, 2005 @ 10:14 PM | Reply

    • I’ve heard of a very respectable kernel hacker who uses the following strategy: always patent the second best solution, and implement as free software the first. That way, you get the patent bonus points *and* it’s a worthless patent. But I’m not smart enough for this…

      Comment by mulix — December 12, 2005 @ 8:41 AM | Reply

      • That’s awesome.

        Comment by taral — December 12, 2005 @ 9:37 PM

  5. IMHO, you should always file them if you have the means to do so, as a defensive measure only, but only if you work for an employer you know will not be evil (or is at least guarenteed to be too incompetant to fight patents). (And of course if it’s a small company, all the company’s debtors have to be non-evil too, since on dissolution day the patents will be appraised as an asset and handed out to repay debt.)

    Comment by midendian — December 11, 2005 @ 11:25 PM | Reply

    • I work for IBM. Where would you say it’s at on the non-evil scale?

      Comment by mulix — December 12, 2005 @ 8:42 AM | Reply

  6. No ambivalence needed, how I see it. I look at who I’m against in the patent field and find out that they are all companies who create nothing and just horde patents in order to sue. My company gets attacked by companies like that regularly.
    You are actually creating something.
    I think that Heinlein (Grod bless his fascist boots) said it in “Time Enough for Love”: “When the ship is loaded and the work is done; no regrets, no looking back”.

    Comment by yrk — December 12, 2005 @ 5:14 AM | Reply

    • I am mostly with Yoni, here.
      I don’t mind patents on processes where the end result is a very tangible product, but software patents bug me because they fundamentally protect an idea rather than something tangible produced as a result of that idea or even a specific implementation of that idea. I’ve always viewed copyrights as the best control mechanism for software. (Copyrights have their own problems, too, but they’re not quite as onerous and potentially stifling to real progress as software patents can be.)
      But, since we have to deal with software patents in so many countries, I have much respect for organizations such as IBM who only seem to use them for legal defense. So long as those companies keep to that philosophy of patent-holding, I’m all for helping them to obtain as many patents as possible. It makes my life easier because I know that I can work on software that might be covered by their patent without fear of legal problems in the future.
      That’s no guarantee, of course. Companies can change their minds about how to handle their patents, too. But usually that takes a long time to happen. Big organizations don’t tend to move very quickly.

      Comment by jeramey — December 12, 2005 @ 7:06 AM | Reply

      • I’ve heard from the highest levels of IBM the following statement (paraphrased…)
        “the patent system is fscked and should be changed; but as long as it is what it is, we still need to win”.

        Comment by mulix — December 12, 2005 @ 8:47 AM

    • I think that’s the quote of the week 🙂

      Comment by mulix — December 12, 2005 @ 8:46 AM | Reply

  7. Patent, then license for free use?
    Doesn’t the GPL text recommend licensing a patent for everyone’s free use? Is this an option in your case?
    If not, the idea of patenting the second best idea seems an interesting one. If there’s no second best idea, maybe you can concoct one from your best idea so far, by purposely including suboptimal design and implementation choices and stuff…
    — bi (

    Comment by Anonymous — December 12, 2005 @ 10:32 AM | Reply

    • Re: Patent, then license for free use?
      No, it’s not an option in my case. The patent rights belong to IBM.

      Comment by mulix — December 12, 2005 @ 12:29 PM | Reply

  8. my $0.02
    I think that IBM is fairly low on the evil scale, and would probably only use them for defensive purposes (are there any examples of them using them in a way we would find unacceptable?). That’s one of the main things that made me want to work there. I think you should keep filing whatever non-trivial patents you come up with, since IBM seems to value them (and the people that file them). Outside of work, keep contributing to free software!

    Comment by Anonymous — December 13, 2005 @ 11:21 PM | Reply

    • Re: my $0.02

      Comment by Anonymous — December 13, 2005 @ 11:22 PM | Reply

      • Re: my $0.02
        Get a blog already 🙂

        Comment by mulix — December 15, 2005 @ 4:06 PM

      • Re: my $0.02
        I don’t think my life is so interesting that it’s worth the hard disk space on livejournal’s servers, let alone interesting enough that people would come read about it 🙂

        Comment by Anonymous — December 15, 2005 @ 5:07 PM

    • Re: my $0.02
      I’m not aware of IBM using patents for what I consider unacceptable purposes. I can tell you though that I’m aware of many patents being filed by IBM that I consider morally reprehensible (i.e. stupid, trivial or otherwise this-shouldn’t-be-patentable). That’s not as much a statement about IBM as it is a statement about the USA patent system that allows (some would say encourages) such patents. In other words – if IBM didn’t do it, someone else probably would.

      Comment by mulix — December 15, 2005 @ 4:06 PM | Reply

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