There's certainly short supply of the secret sauce in Qualcomm's baseband.
Your team spent millions building it, and, in order to give a sufficient incentive for teams to do similar things to that, the law should probably give some protection so that Qualcomm can make a profit from it. But you're conflating a bunch of things here:
1. Qualcomm knows the product and has the engineers. Qualcomm is uniquely positioned to build usable reference implementations, chips, etc, and to charge for this service and for support. This requires no legal protection whatsoever.
2. Qualcomm holds copyright on the code base. This has nothing to do with patent law, and I think that very few people would dispute that copyright makes sense in this context. (Whether long-term copyright makes sense is a different story altogether. I tend to think that a decade or two would be more than enough to make Qualcomm's investment worthwhile enough that they would do it.)
3. Qualcomm holds lots of patents that prevent other people from spending the same millions of dollars to develop a competing product without taking significant risk of being sued. I, and many others, think that the law should not offer Qualcomm this protection.
4. As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate.
This is going in circles. You cannot patent something without disclosing it. So, either Qualcomm has a patent, and it isn't secret, or they don't have a patent (nor can they ever, after 18 months) and the argument is moot.
Yes, but then software patents should require you to release a full reference implementation with full documentation under a free (BSD, MIT) license as soon as the patent runs out.
Currently, they don't release it at all.
Additional regulation I'd like to see: Any neural networks trained based on data of users have to be completely public domain. If Google wishes to train recaptcha, they should either pay for people to train it, or give back to the public the value that the public created.
Why not as soon as the patent is granted?
edit: you might bring up clean room engineering that AMD did in the 80s. Intel weren't effected, and are bigger than ever. And the pace of innovation is massive.
The date that matters for trade secrets with respect to patentability is the date that they are first published or offered for sale. I don't believe offering a binary for sale counts as offering the trade secret for sale, but insert usual disclaimer.
Why should you or anyone else get to decide on how Qualcomm is monetising the product of their investment?
Qualcomm spent millions on developing this, nobody else should be able to decide this.
> 4. As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate.
It is Qualcomm's property, they can keep it secret or open source it however they decide. I deeply reject the idea that government should have the right to order us to share our private property with the public.
Mostly I agree with you, but I think it is worth noting that this discussion is in the context of patent protection for software.
One of the requirements of applying for a patent is providing a reference implementation - I believe this is what the parent was referring to when they mentioned whether or not Qualcomm should be "permitted to keep the sauce secret".
I said no such thing. I said that Qualcomm could do this, not that they must or that they should be required to.
>> 4. As you said, the sauce is secret. I think the question of whether Qualcomm should be permitted to keep the sauce secret and how much the law should help or hinder this secrecy is worthy of at lease some debate. > > It is Qualcomm's property, they can keep it secret or open source it however they decide. I deeply reject the idea that government should have the right to order us to share our private property with the public.
I don't think the government should, in general, require Qualcomm do share this secret sauce. But it just might be worth considering whether the government should require that the secret sauce that runs enormous numbers of devices (read: extremely high-value target if someone can break or pwn many of them) on wireless spectrum (which is a shared resource!) should be opened to independent auditors and security researchers as a precondition of being granted a license to operate on public spectrum.
Like I said, I think it's worthy of at least some debate.
Because Qualcomm is riding the coat-tails of a government-issued investment protection? You can't argue for anti-free-trade policies by using free trade arguments.
For the sake of argument, if Qualcomm had no such connection to the government and has created it's products entirely from private funds, why should the government or other third parties have a right to dictate their product?
And there you have why your situation is no different.
Software is a dish, we are chefs, and techniques are our recipes and principles. You should no sooner be able to patent a chicken casserole than a baseband. We merely discover what is already true and turn it into code.
Maybe they would, but they didn't.
The point of the patent system is to incentivize people to publish their inventions. The secondary purpose is to encourage invention. Giving a temporary monopoly is not the greatest solution, but try coming up with a better one.
And as software gets more complex, you need to support it and build new features. That happens all the time without the aid of patents. In fact, when a patent is made, then sure its patented but so what? It can't be used for decades, and so only one party benefits and the idea that is beneficial to society stagnates.
This is not a zero sum game here. If you patent a medicine for 10 years, then people like Martin Shkreli come along and jack up the price of their product, nobody is allowed to offer cheaper medicine and literally millions die.
Or you have a situation where a non-lethal arrow is patented, someone independently comes up with the same idea, documents it and sells it, does to want to patent it and then gets sued to an inch of their life. Then you have an independently document invention, and no innovation.
The argument doesn't stack up.
Open-source is essentially just a tool for collaborating on software more easily (ignoring the Free Software side for a sec), but which requires giving up propriety over the software.
Patents are hundreds of years old. In the fifteenth century markets and science was very different to what it is today. There is an argument that patents were helpful before the world evolved to freer markets. I mean, patents were invented around the time of feudalism, and nobody now considers THAT to be a good idea. An example used for the case of patents is James Watt's steam engine, an amazing invention. But in my view it is an example of an invention where innovation was deliberately stymied; sure he improved upon it greatly, but then again he prevented any number of other capable people from doing so and caused a monopoly. And ironically he could not have patented his invention had he not taken the original non-patented ideas of Thomas Savery and Thomas Newcomen, who originally worked out the general principle.
In fact, you only have to look at the most important invention IMO the world ever produced to see that patents would have stopped innovation entirely - the printing press, which predates patents by a century. Without the printing press, almost no modern innovation would have been possible. There were vast numbers of printing presses produced that allowed much more rapid dissemination of ideas and ushered in the current age. Had a patent been allowed on this innovation, then the modern day would look much, much more different. Even religion would have been different.
No, patents may discourage trade secrets, but you assume that they are the only mechanism for doing so, and you dismiss the fact that they aren't necessary to prevent someone else from discovering that trade secret.
Open source is relatively orthogonal to the patent system. There is some overlap in that they both require disclosure, but the fundamental incentives are different, so you should expect different software to be developed.
Improvements to patents can be patented in their own right, by different owners. I agree that it is significantly more onerous than open source.
Scummy as Martin Shkreli was, he jacked the price up on a generic... Not something under patent. It just takes time/money to certify that new generic lines are manufactured to FDA standards, do he had a temporary monopoly.
Lawsuits against "infringing" software are relatively easy, and expensive to defend against. That is independent of whether the defendant patented the software or not. This is more the nature of our legal system, and one could argue that the patent system should handle this stuff internally. However, I think the legal system would be hard to improve upon without causing other problems, like making it difficult to challenge for legitimate infringement.
All in all, I agree a lot of questionable patents get issued. I just think the reality is far more subtle.
Your final point about patent infringement... I dunno what to say. You've just explained why patents are inherently problematic, the patent system can't handle it internally because then they would be handling financial lawsuits in a non-transparent matter, and the rule of law would be in essence damaged. By making the patent office the approvers AND handle objections - that's not going to ever work. They'll almost always agree with their own decision. After all, they made the wrong decision in the first place!
Patents occur within the legal framework. If the patent system is hard to improve, then those other issues you mention are, to my kind, not immeasurably greater than the utterly broken patent system we gave today.
I don't feel the reality is as subtle as you talk about. I think it's actually as clear as day that patents distort markets, and I don't feel you've demonstrated that patents aren't orthogonal to open source software, except where it comes to financial incentives.
Open Source financial incentives are to build the best software that the market wants, and sell the code with backing support contracts and early access to new features that are shown in the open, with guarantees that the best people are working on the software; yet still the same time allowing maximum competition and innovation in the market whilst each company or organization strives to produce the most attractive offering.
Patents attempt to produce a monopoly on an idea and prevent anyone else from capitalising on it for decades. It assumes that nobody will ever want to form an invention unless they have exclusive control over that idea. That's self-contradictory - protecting a patent means that someone else WILL have that idea eventually and want to build a product around it, or even incorporate it into their product. They won't be able to, except at great cost. This clearly and IS stifling innovation. The rise of patent trolls and defensive patents are just two examples of how utterly and fundamentally flawed the entire concept of patents are.
A couple of important points:
> They are still making innovative products, but they distorted their market power and millions of poor Indian citizen's lives were immeasurably worse off for it.
No, most innovation in new drugs happen in countries with strong patent protection. There is a lot of development outsourced to India, but almost nothing innovative on the development side. That isn't to say India's policy doesn't make sense for them, but they are essentially just stealing from the US and other countries. Imagine if that were true worldwide 20 years ago. Health insurance would be a lot cheaper, yes, but a large percentage of drugs developed in the last 20 years would not exist. It's a trade off that maximizes a longer term return.
> infringement
Yeah, I was just pointing out that a lot of the patent system is designed to protect people who are being infringed by larger entities. Just because it is abused by others doesn't mean it doesn't serve a purpose.
> patents distort markets
Of course they do, but it is not necessarily net negative.
> demonstrated that patents aren't orthogonal
Yes, that is a very long discussion. However, it should be fairly obvious that the software developed by industry and the software available in the open source world is not the same. I would go so far as to say the open source world is an order of magnitude or two smaller than software from for-profit entities. There are different incentives for releasing open source software than starting a business, and patents are designed to make the latter more attractive.
> Patents attempt to produce a monopoly on an idea and prevent anyone else from capitalising on it for decades.
No, patents provide a temporary, licensable monopoly on an implementation. You don't patent the idea of holding paper together, you patent the concrete implementation and manufacture of a paper clip.
More importantly, they require disclosure of that implementation to the rest of the world. I think this gets lost when people talk about removing the patent system. The primary purpose wasn't to encourage invention, but to make sure people disclose it.
Maybe I'm missing something but there aren't many examples of truly innovative open source software - most of OSS projects even describe themselves as "Open Source alternative to [insert innovative commercial product here]"
edit: removed the "that's ridiculous" comment. I'm sorry, you aren't ridiculous, nor is your comment. That showed you a great deal of disrespect, and I was out of line. I hope you can accept this apology. My disagreement with your argument should never have led to disrespectful comments.
(I just hit the up vote arrow)
I think some of my other comments have this language in them. That's unfortunate, it's just this is just the first one I noticed.
What is missed here is they might of come up with a better solution, but due to the risk of a lawsuit they never even try.
Carmack's Reverse is probably the most well-known example of this, also in the graphics field.
It may still be optimal in some macroeconomic sense to encourage two people who independently invent an idea to race to patent it and to have the winner of the race sue the loser. But I think most people would consider this scenario unfair.
I think some of the general attitude towards software patents has to do with CS's very close historical relationship with the math department, with many of the old CS advancements and algorithms having been done by mathematicians or at least math majors (if you count people like Knuth and Hoare) and in math there's always been a very strong culture of work-sharing as well as the general attitude that many discoveries were fated to have been made by someone (such as the contest to prove the theory of quadratic reciprocity), and there are many famous examples in history of different people independently discovering the same proof. It's this latter belief that causes people to believe that patents have a "chilling effect": when there are no more algorithms to be discovered, the only way to develop an effective product is to pay one of the first movers, also known as "finders-keepers", also known as rent-seeking.
Patents are awesome when they discourage stealing work, but bad when they discourage independent reinvention. And it's really the possibility for independent reinvention, not "triviality", that makes software patents a problem. Unfortunately just because a problem isn't simple doesn't mean that two different people won't find similar solutions independently. When someone gets a patent on the only effective way to do something, it can create a legal barrier that prevents some people from being able to do it at all, like using a Mac in the '90s with a decent mouse, or listening to music on an open-source device, or HTML5 <video>... who knows how much stuff hasn't been made because of MPEG-LA?
I have an idea for obtaining two apples. It involves going to the apple tree and obtaining another apple and adding it to the one I already have. Simple, but valuable idea because its constituent ideas are probably low cost (the apple tree has apples... find an apple tree... reaching for the apple is also a simple concept). Of course the value of this idea is the sum of its constituent ideas. So it may turn out that there are no Apple trees in the vicinity and no one knows where to find one. Then the value of the idea is inversely correlated with the cost of the constituent ideas (finding out who has an idea where there is an apple tree). The idea for physically obtaining the apple once you are at the tree is to physically reach your hand up to an apple and apply a sufficient force to remove it from the tree. It's a brilliant idea, but it is also cheap since 90% of people over 3 years old probably know how to do that.
The funny thing is, if software patents were only for 5 years, then it's unlikely this would be a story. The market could be capitalised on still by first-movers, and then competition and those who want to contribute further to society could cool their heels, even study the designs, and move product for consumers, and provide additional jobs. Mass market distorting giants couldn't get unfair advantages and innovation would thrive. The technology would improve because then that same company could file improvement patents, but not stop the old patent from being used. Patent trolls would not be a thing, or at least a very limited thing and at the very least all easy processes would be documented.
Teams of PhDs would still invent things. We'd still have cool tech. Open source people would make amazing things. Matheticians would continue collaborating. The world of commerce would not come to an end.
The answer: they can't, it's all subjective to the examiner, and the examiner has an incentive yo eventually pass the patent. Then it has to go through an expensive court case where only a patent troll wins because they threaten lawsuits which some companies can't afford, even if the patent is bullshit, or nobody wins as the patent troll doesn't succeed, but no or inadequate costs are awarded to the defendant.
A lot of those millions of dollars are because you have crappy processes, crappy tools ("rational" ones for example), base-level engineers (with some exception) and stupid management
I bet most of your "secret sauce" is mostly application of Computer Science 101/201
I know, those softwares are complicated. But I'm not feeling sorry for most big companies who like to justify cost with their own crap dragging them down
(And yeah, I know, telecom protocols are awful)
That's why Android and Apple wiped traditional phone companies
...and this is funny that you consider advanced signal processing, numerical analysis, SoC architecture, discrete optimization a CS 101 - what a joke.
No I don't, and good for you that doesn't work with bozos that like ClearCrap, oops, ClearCase. Apparently they evolved
> that you consider advanced signal processing
No, I don't consider that simple, but sometimes the frontend signal processing is split (DSP stays in one part and higher level processing in another part)
> numerical analysis, SoC architecture, discrete optimization
Well, SoC architecture is hardware, no?
That said, the patent office may not be qualified to distinguish between something that someone whipped together and something that took a team of PhDs years to invent. And maybe that problem is an intractable one.