If you own a software patent, you should feel bad.
Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this statement.
I can believe, philosophically, that relatively high tax rates will benefit a society. That doesn't mean that, even in so believing, I wouldn't do my utmost to minimize the tax that I pay within the rules provided by the law. The question before me when I make such decisions is what makes sense for me as an economic actor, not what the broader policy for society should be. And there is no reason I should "feel bad" for acting in my own self-interest in that case even if I believe the rules should be otherwise.
So too, if I am a founder, I can abhor the idea of software patents while still using the full range of IP protections afforded by the law to enhance the value of my startup. If getting a software patent for my company's early-stage innovations enhances funding valuation, acquisition pricing, and competitive edge in the marketplace - and if the law says this is a perfectly legal way not only to protect but also to gain monopoly protection over intangible assets that my company has and others don't - my decision here will turn on weighing the costs of getting such protection (money costs, disclosure risks, etc.) versus the benefits, the likelihood of qualifying for it, and similar considerations having nothing whatever to do with the abstract policy debate concerning whether the law should afford such protection in the first place. What is more, if I don't avail myself of such protections and if a competitor later does so in a way that hurts my venture's prospects because I now have to surmount legal barriers that wouldn't even have been there had I acted to protect my company's legal interests in the first place, then I have done affirmative harm to the people who trusted me to run my company to its best advantage - whether they be my investors, my co-founders, my employees, or just my own family members who might suffer if that venture should fail. This does not mean I need to blindly pursue some form of artificial legal protections for my company's innovations. It means that I need to make intelligent judgments about availing myself of such protections as opposed simply to categorically rejecting the idea of using them. In short, I need to be smart about protecting my venture using the tools afforded by the law and not forego those tools out of some philosophical preconceptions I have about what the law should be. The "should-be" part of the law is basically irrelevant in this context for most entrepreneurial decisions of this type. And there is certainly no reason to "feel bad" owning software patents if they turn out to be helpful for one's venture in this context.
Maybe this will be seen as narrow, unenlightened, lawyer-driven thinking. It is, however, my universal experience in having dealt with countless founders over many years. Without exception, they have all acted consistently with the pattern I describe and there is no reason they shouldn't have. It makes perfect sense for a rational economic actor. Startups have enough risks as they are. There is no reason to add to them artificially owing to social pressures telling you to "feel bad" for doing what is right for your company.
I know the sentiments against software patents are strong here on HN but there is a big difference between a policy debate seeking to influence Congress and actions that make sense for individual actors having to deal with the realities of the law as it exists today. One can condemn the idea of software patents generally without necessarily passing censorious judgments about the actors who need to deal with the law as they find it.
So what you're saying is, you'd like to talk like you have a virtuous outlook on life, but you don't actually want to own up to the consequences of said virtue. I can understand this outlook. It is easier to pander to people and act in your best interests than actually suffer the consequences of your ideals.
However, I might note that this approach is easy because it seldom accomplishes disruptive change. If you want to really disrupt a market or community, you will often face difficulty, incredulity, ridicule, and unfair play. So it may actually be in your long term best-interests not to play this way.
As a capitalist-friendly example, I'd like to point to the iPhone. Apple took a huge risk (especially financially); faced extreme difficulty in developing and sourcing the device; faced ridicule on all sides at the merest rumor of the iPhone; and had to fight very hard to not have a carrier completely destroy the product with their (still present) status quo of "differentiating" every product. However, the end result completely disrupted the phone industry. It's also fascinating to note that the "lawyer-driven behavior" has appeared from Apple as other parties have started working furiously to catch up, and finally begun to succeed.
I have worked hard throughout my career to make sure that my name has not ended up on a single software patent. When I was at Microsoft, several were proposed around work I did for Powerset (and 1 was proposed from work I did at Lockheed Martin). I did everything I could to shoot them down and stop them, because I believe they are wrong. Maybe I've hurt my career with this approach, maybe all I've done is piss into the wind, I don't know.
As a software developer who has had 3 patents taken out in my name based on my work, I completely understand this statement.
For me the "oh shit" moment was when I was informed that 2 separate sets of patent trolls had looked at the patents and had valued them at easily over $100 million if used to sue a number of major companies, including Facebook. I'd like to believe that I've created a lot of economic good in my life, but not that much. And that my work could be used do that much damage to other people who have done nothing wrong but happened to independently come up with the same ideas later - that makes me sick.
Luckily by an odd coincidence, the patents taken out in my name have wound up in a place where they are unlikely to be used to cause this harm. But I have no control over them.
The same is true for a startup founder whose startup takes out patents. There is no question that - for the reasons you give - they would be foolish not to pursue patents. However if you pursue patents then your startup fails, your patents can be acquired by a troll for a song. Or if you succeed in being bought out, they will pass out of your power, from which point it is someone else's decision what happens with them. Should they, down the road, be used to damage someone else for more than your startup ever managed to make, how will you feel?
My attitude is that patents are becoming weapons of mass economic destruction, and a serious tax on innovation. Before taking a patent out, I would recommend that you think hard about that fact. Because if you don't think about it now, you will have ample time to reflect and have regret if the worst happens.
Edit: In case anyone is wondering which patents, US7743404, US7774612 and US8209541. The second and third came as surprises to me, but these things happen once the patent office examines the patent. Part of what makes them valuable is that a good literature review was done at the tim. A number of major companies had tried to solve the same problem, but had come up with worse approaches. Then OpenID came along, solved it in the same way that I did, and everyone who uses that is potentially liable.
I think there's a categorical difference between what you think about software patents and what stronger opponents - possibly notch - do. You consider them a bad public policy. They (well, we) consider them morally wrong.
It's hard to give you an example without knowing you, so forgive me if I go with an extreme example. Let's say your company does a physical product, and you find a country where it's legal to employ children, which would reduce your labor costs by 30%.
It makes economical sense to do it, but would you?
Now, you may find it ridiculous to compare child labor with software patents - and I admitted my example is extreme - but the fact remains that Notch and others consider them inherently wrong and therefore believe that people who engage in such behavior are to be criticized.
"Software patents are bad, but they are legal and everybody is doing it, so I have to do it, too."
grellas, I respect your opinions and appreciate your contributions here on HN, but this is wrong.
There are countless profitable and legal but unethical actions you could substitute in your analysis that make "perfect sense for a rational economic actor."
I own a patent and I do feel bad. The idea was ridiculous, but I had our corporate lawyer swarming around me like a swarm of bees. I tried to explain to them that the idea is obvious. I even tried to get my name off the patent. Wasn't possible.
Software patents are bad. period. An idea does not cost anything and it's not like you won't have an idea if you could not patent it.
Patents should protect r&d cost, things that would not happen otherwise
So you're quite ready to admit that any moral consideration is moot for you when business is involved?
It's a shame this seems to be the case in much of the world of business. My stance would be that if I find software patents to be detrimental to society, worthless as anything other than legal weapons to stifle competition, then it would morally suspect to engage in taking them out.
1. ask for the rules of the game to be changed such that we would all move from a sub-optimal Nash equilibrium to a better Nash equilibrium
2. Continue to personally defect and maintain the current sub-optimal Nash equilibrium while calling for the _game_ to be changed such that the sub-optimal Nash equilibrium no longer exists. Unilaterally cooperating results in losing (and evolutionary selection effects might result in all such do-gooders being eliminated).
Note that this is not possible in a Prisoner's dilemma because the point of trying to change Patent law (or change Tax law) is akin to changing the game from a Prisoner's dilemma to something else. I.E. The advocated course of action is _outside_ the game.
I do not understand why the economic self-interest exercised within the boundary of the law should always trump the sense of guilt. To test the argument think about a statement like "If you own a slave, you should feel bad" made around 1800. It was legal to own a slave in 1800, but it was still wrong.
Your attitude only keeps the status quo in place. We need to be radically opposed to patents, there is no good in them whatsoever. They are a gross injustice to decent people trying to create new things and move humanity forward and deserve not the slightest bit of legitimacy.
>Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this statement. I can believe, philosophically, that relatively high tax rates will benefit a society. That doesn't mean that, even in so believing, I wouldn't do my utmost to minimize the tax that I pay within the rules provided by the law. The question before me when I make such decisions is what makes sense for me as an economic actor, not what the broader policy for society should be. And there is no reason I should "feel bad" for acting in my own self-interest in that case even if I believe the rules should be otherwise.
Well, I can understand your position, but this is the very definition of selfishness and hypocrisy that you describe.
> But there is no way in hell you can convince me that it’s beneficial for society to not share ideas.
See, this is what's broken with the patent system. Originally, patents were supposed to encourage idea sharing. The idea being that, if you couldn't protect your ideas, then you were likely to keep them a secret. Patents give you just enough protection that you can share them. You share them, and then if the idea is good, people pay you to use that idea in their own work...
So, how about this: you can get patents, but licensing fees are regulated. Say, you take the average number of patents produced by a company in a field per year, divide the average expenses for those companies by that number, and divide that total by the number of companies in the field (that might be interested in licensing the patent), and that's your regulated patent fee.
This would ensure that, for example, the pharmaceutical industry (where average cost per patent is something like $10 mil) would still be able to charge appropriately high fees to license patents. The software industry, on the other hand, where patents are handed out like candy, and the number of companies that could license your patent is huge, would end up with licensing fees of something like $10.
You still need to fix 2 other problems with software patents, otherwise it won't work.
1) shorten the software patent period to 3 years
2) dramatically decrease the vagueness and triviality of software patents somehow
Otherwise, you end up like in the mobile industry, where something like 250,000 patents exist in any given phone, and I assume most of those are not enforced, but if they were regulated, and manufacturers were forced to pay for them by default, I could easily imagine patents costing more than the product itself. This is why you need to drastically reduce the number of patents as well.
That is a common misconception. Actually patents were an adaptation of an existing system where royalty would give monopolies away to companies they liked.
No-one did any scientific tests at the time to ensure that they were a good idea in the first place. Now those who do retroactive studies are ignored.
A single product likely infringes on thousands of patents (a possibly dubious Google/RPX estimate was 250k patents for a smartphone), in which even $0.01/patent becomes unsustainable. Especially in software, chances are that you didn't learn about the ideas in the patent by reading the patent or observing products that use the patent, but rather on your own while solving a problem.
> Originally, patents were supposed to encourage idea sharing.
The original idea of Marxist communism was very humanitarian in its intentions. We know how dictatorial it turned out when it was implemented. Good political theories that turn bad typically didn't take all parameters of reality into consideration. They're utopias.
Patents were initially devised to let inventors to recoup their R&D expenses by giving them exclusivity on the market. And this - the R&D expense - should really be a defining factor in whether or not something is patentable.
This way a 5 minute brain fart by a recent graduate won't be patentable, but a clever optimization technique that stems from several man-month of testing on a cluster of Crays will be.
Software is already protected with copyrights as literary works. Copyright protection is not as broad as patent protection. It doesn't prevent competitors from writing a program with similar features but different source code, but it does protect against competitors copying the source code.
Although probably not, unless the parent has all the code needed to implement whatever the patent covers in the language I'm using and correctly following the conventions and patterns of the language and platform.
"If you own a software patent, you should feel bad." You might think its "just for defense" and have the best of intentions, but like landmines and toxic waste, the patent will almost certainly outlive your use for it and wind up in hands other than your own.
So there it is:
Patents are like the toxic waste of innovation. You promise yourself to keep them safely contained, but its hard to do in the real world and once they spill, they contaminate everything around them, making the ground uninhabitable for 20 odd years.
Common sense speaking. Patents are indefensible nonsense.
That said, I think the point he raises is interesting. There are some ideas which are entirely algorithmic and are hard.
Specifically complex technical standards like video compression and encoding, machine vision, wireless signal processing, etc.
These are things that require a significant capital outlay to invest in research to solve the problem, but once it's solved... well, someone else can clone the logic and make a free version. So you patent the process.
If you dont, you cant guarantee a return on investment in the project, and thus you dont get investment in the project, and ultimately the problem doesn't get solved.
Its an interesting thought experiment, and it makes for a good argument for patents existing. ...but then, where do you draw the line between "complex and costly" and "stupid and trivial".
It's an argument I've heard a lot; I think it's nonsense too, but it convinces a lot of people. It'd be interesting to see a thoughtful critique of that argument, rather than the 'stupid patents are bad' argument, which, basically everyone already agrees on.
> If you dont, you cant guarantee a return on investment in the project, and thus you dont get investment in the project, and ultimately the problem doesn't get solved.
Well, it doesn't get solved by for-profit actors as a way to make money.
But it can get solved by government-sponsored research. You can look at patents as a complicated tax system intended to fund innovation. We might be better off just making it an actual tax system that funds education.
It can also get solved by foundations, or by for-profit actors working in non-profit-seeking ways. Linux is a great example of innovation in that model. Industry consortia are an interesting model, as is something like Underwriters Laboratories.
>That said, I think the point he raises is interesting. There are some ideas which are entirely algorithmic and are hard.
Clever and/or sophisticated perhaps but not hard. The hard parts are the mathematical foundations, done by mostly dead people who are not getting a penny out of it.
>If you hold a software patent you should feel bad about it.
The problem is that they are sunning their arse in the Bahamas and are feeling great about it.
An important point is that patents are not about having the idea first, but patenting the idea first.
History is littered with examples of people that failed to patent their invention only to be beaten over the head by someone that did. In a patent-happy society there's no room for innovators, only lawyers.
Patents, by function, are government granted monopolies over a idea or concept.
So, basically, the person that holds the patents is guaranteed to have the ability to sue anybody that infringes on the patents. This is backed up the ability of the government to inflict violence on anybody that infringes.
And what is happening is that the system is getting worse.
USA was unique in that it had a first-to-invent rule governing patents. That is if you are the first inventor of something you have the right to the patent even if somebody else pays off the government first.
However, soon it's going to be first-to-file. Meaning that even if you invented something first you can still infringe on a patent if somebody else is able to get to the patent office and pay them off first.
This will go into effect on March 16, 2013.
Now people will argue that this streamlines the system and makes it much easier to identify people that have the legal ownership of a particular patent and thus reduce fees and the expense of taking people to court....
But seeing how patents are generally terrible things then making something that is terrible better at being terrible is not really the sort of 'reform' that we should be looking forward to.
> I’m not sure it’s good for society that some professions can get paid over and over long after they did the work (say, in the case of a game developer), whereas others need to perform the job over and over to get paid (say, in the case of a hairdresser or a lawyer).
Not sure I agree with this point. All professions are different, some make their money long term by providing value and gaining experience, some make their money by just doing work and some make their money by providing a product over time.
A (good) hairdresser for example makes their money because of reputation, if they do great work for customers they can charge more, therefore their previous work does matter, just in a different way. An actual example of people that get no long term value from the work they do are retail workers: a shelf stacker doesn't get a "better" shelf stacking job stacking "better" things if they can stack shelves well.
If people support the idea that content creators don't "deserve" to make money long term then content creators will just go further down the Steam / EA route: don't provide a product, provide that product as a service. Instead of purchasing a copy of a game, you rent access to it on a service which can be revoked at any time and is 100% controlled by the issuing company. This is what Steam is...
I think that whilst notch has raised some valid points, he has really written an argument based on half the picture. I believe that maybe notch should read up more on criteria of patentability, other patent areas, and the feasibility of having everything 'funded by government' and perhaps share some of that too.
I agree that something like a software patent may be a bad idea, but you have to realise that a lot of people read your stuff and get influenced by this 'half of the patent picture' and then leave with the wrong idea and start criticising legitimate patent areas.
For example: Company A spends $200M of investors money finding a new anti-depressant. Ok so they invested all of this money, now they need to spend 8 years proving to the FDA that it is safe to use, there goes another $300M. 'Generic pharmacies inc' says hey, thanks for doing all that work, now we can manufacture that drug in our factory for 1c/pill and make a little bit of money, good luck recouping your research money because we just got all the cheap sales. Company A goes bankrupt, the investors lose their money. Company B and C notice this industry is poor for research, and decide never to spend that money finding an anti brain-tumor agent.
However, if company A had patented their idea, then they will have around 10-15 years of patent-protected time (because they have to patent before divulging it, and by the time you get through trials and approval you can often have just a few years left) to sell their drug at a price where they can recoup their $500M, and invest in more bigger and better research.
Meanwhile, whilst patented, other companies can see that research and build upon it with their own research - they just cant rip them off with the money they are owed in that time by selling it without permission. If they really want to sell it, they can ask the company to license it to them, and pay royalties. Later, the patent expires, as all of them do, and then generic company is free to manufacture it without paying the inventor a cent.
Is this not a valid reason for patents? I'm sorry notch but you cant copyright a pill, even though that copyright law may protect your own interests (minecraft)
This is a mind-bogglingly simplistic and broken argument against patents. The main argument is by analogy and argument is patents suck because they prevent the sharing of ideas. These are both horrible ways to argue against the patent system. I guess it's garnered a large number of upvotes because of the author?
Debating whether patents are good without differentiating on industries seems wrong to me. I've been involved in investments in pharmaceutical companies and investments in IT companies. Those are two completely different worlds.
In the pharmaceutical world founders and employees more often have large opportunity costs by starting or joining a new venture. They are usually in their 30s or 40s with huge student loans, mortgage and kids. They forgo high incomes if they join a start-up. The road to the market is much longer (often more than 10 years). Investment in machinery is also at a completely different level. Drug development usually entails million dollar investment in specialized equipment. Perhaps the most costly aspect of drug development is the regulatory obstacles, such as getting approvals.
In contrast, IT companies are cheap. Founders often have little formal education (Microsoft, Facebook, Skype) and the road to market is much shorter. IT start-ups expect customers (or at least users) in a matter of weeks or months. Many IT companies can get to proof of concept with almost no investment in equipment. The founders simply bring their laptops on board). Regulatory concerns, if any, can usually be dealt with by one lawyer in a few days.
I cannot imagine anyone investing hundreds of millions of dollars in drug development over the course of 10 years without some assurance that competitors can't "steal" their idea. Usually that assurance is a patent or a trade secret. But keeping secrets over 10 years with employees coming and going - that's difficult.
tl;dr: Once you have an idea about, say a shopping cart in a web store, it can be implemented in a few man-weeks. Turning an idea about a new drug into a product often takes thousands of man-years. Whereas the institution of patents seems harmful in the world of software development, it may be necessary in the world drug development.
Of course the flip side is that if a drug is not patentable then research stops. More effective drugs are replaced with slightly modified, possibly less effective or more dangerous, and definitely shorter track record drugs just to preserve profit margins. If natural compounds are more effective in treating some condition, today's pharmaceutical industry will do all they can to avoid discovering that.
Sure drugs are expensive to development, but I'm not sure that the twisted system of incentives is beneficial overall. Of course the industry will claim that none of this research would happen without patents, but of course they are set up that way and can't imagine it any other way. I doubt that humanity as a whole would simply stop advanced medical research because the economics changed.
I do not think that the whole patent issue is one of scale. It's one of
principle. Nothing and no one should be allowed to own ideas, formulas,
algorithms, genes or molecular arrangements.
Besides - and I've argued this countless times in the past - most medical
research is already funded by the government. So it's not like innovations in
medicine would suddenly grind to a halt. Maybe we'd see less useless shit like
the newest "Anti-Aging" creme or other complete wastes of money.
Here's another fun fact: only about 15% of the income of the big pharma concerns
actually goes into research. Most of it goes to advertisement. How in all hell
is that a good use of money?
Furthermore, this system incentivices the utterly wrong things, and this remains
my strongest argument against patents especially in pharma. You aren't
encouraged to find cures, things that stop the cause of a sickness. The most
profitable way is to find treatments for symptoms, which bind the patient to
your meds, often for a long time, possibly until death. The best example would
quite likely be AIDS. This is nothing less than completely, totally,
absolutely, irredeemably and unexcusably fucked up.
This sounds ridiculous. Most founders I've seen had degrees.
And for the three companies you listed. Gates and Zuckerberg both went to Harvard but dropped out. And Zennström had an MBA and Masters of Engineering/Computer Science.
The main problem IMHO is the cultural definition of "obviousness" among patent examiners. They seem to think
a) that (in practice) all meaningful prior art is patented so all they have to do to find it is search their patent databases and
b) the slightest difference between prior art and a new "invention" makes the "invention" non-obvious.
IMHO prior art should be whatever you can find in library and (more importantly) on the Internet. The test should be that the difference is non-obvious "to a person skilled in the art", i.e. the inventive step itself has to be non-obvious.
From the patent examiner AMA on reddit, and from comments that patent law professionals have made here, it seems that those involved with patents are a bit out of touch with the reality for software professionals.
The patent database is a tool, it's not reality. The way that patents are written and treated is also out of touch with reality.
Exactly. If it can be proven that an alleged infringer actually came up with the same idea independently, that should demonstrate that the idea is not non-obvious and therefore the patent is invalid.
I can't remember a single case of patenting improving consumer experience in the modern era.
The way I see it, patents are designed to improve capitalist behaviour, once where your ideas are protected: the march towards innovation is strictly optional.
It's time instead to consider how dependent our world is on iterative practices. Everything we build on and upon is no longer unique: it's all inspired, and improved.
Jim Jarmusch said this once:
>Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows.
To embrace iteration, we need to get rid of patents. That much is certain.
You don't know what may have never existed with no patents. Maybe Jobs doesn't even consider the iPhone. This sort of thing is just speculative without a control.
One sole inventor who developed 5,127+ prototype designs and clearly brought something unique to the marketplace. Gave his whole life and money to the product.
Almost immediately after it came out Hoover copied the design and basically would have put him out of business.
The patents were the ONLY thing that protected him from a huge multinational who didn't invent anything.
Now Dyson went on to invent a whole range of very cool gadgets which never would have existed without patents.
> If you own a software patent, you should feel bad.
I have several (although all of them are "owned" by my former employers). We filed them not to attack, but to defend. I hate software patents but I don't feel bad for having them.
> I would personally prefer it to have those be government funded (like with CERN or NASA) and patent free as opposed to what’s happening with medicine <cut>
I have to vehemently disagree with this.
Copying ideas and making incremental improvements on existing inventions is the core of what makes technological progress possible. Even just plain 'ape-ing' ideas is vitally important to getting improvements available to the public. This works best in a decentralized environment. Fundamentally it is my contention that a 'wild west' scenario will yield faster and more meaningful human progress then a carefully regulated and regimented system.
Assuming this is true: Then the patent system, as flawed as it is, is still superior to what was popular before it... which was official government academies were scientists and inventors were effectively wards of the state. This is uncomfortably close to what you are advocating.
In that sort of system internal bureaucratic politics and 'administrative law' (which is a term meant to indicate rules-decided-by-committee) dictates the distribution of resources and activities of scientists rather then merit or actual need. I do not think that is a effective environment for the creation of innovation.
I say that it's more freedom that is needed, not less.
Regardless of how one feels about the ideal of software patents, the implementation leaves huge amounts to be desired with vague and obvious patents granted every day.
Imagine if every time a patent was invalidated by the defence at trial, the patent office itself was ordered to pay defence costs.
As one of the few government profit centers, I think you would suddenly find a big improvement in the standard of patents granted.
Let's stop for a moment boys and girls to fix one recurring theme in some of these blog posts and discussions: You are not supposed to be able to patent ideas. There's a reduction to practice requirement.
Sadly, I must say that there are tons of patents out there that are nothing more than ideas or concepts turned into patents. I've run into lots of them in the hundreds of patents I must have read over the years. They fact that they are or were mere ideas becomes a glaring reality when you look into actually implementing the patent and discover that nothing works as advertised.
This is another sad failing of the USPTO: While the rules of the game say that ideas are not patentable, in reality, they are. So, yes, I contradict my first statement. I still prefer to speak with more precision when it comes to patents and not say things like "patent you idea" or "people like to file patents to protect their ideas". You are not supposed to be able to do that.
Wow, so the plaintiffs have a patent on checking with a server to determine if your software is licensed.
"devices that require communication with a
server to perform a license check to prevent the unauthorized use of said application, including,
but not limited to, Mindcraft."
"But there is no way in hell you can convince me that it’s beneficial for society to not share ideas."
Sorry, but Notch has it backwards. Patents are designed to for sharing - not for preventing sharing. (Patent holder shares information on how they implemented something in exchange for being granted temporary rights to deliver on the method implementation.)
I know I'm being naively simplistic in that statement. Yet so is Notch in his analogy. I've found no one who claims that "it's beneficial for society to not share ideas". Setting up a straw man makes for juicy debate, but not great argument.
Patents are not (should not) be about ideas. Patents are about inventions you make and want to licence or exploit by your own. They define the invention so that your clients or yourself are protected from copycats. It is very close to copyright protection where trinity gets tazed for copying the novel. It make sense.
The problem is patenting the concept of a novel. This is really questionnable. How much inventive is that ? This is where the line is fuzzy to set.
I don't think patents OR copyrights are moral. You shouldn't have the ability to stop people from using ideas in their mind (which belongs to them) even if you were the one who came up with the idea originally and put it into their mind. Other people's brains don't belong to you, neither does their equipment for making books, games, movies, music, medicine or anything else. If they can make it, why the hell should you be able to stop them from using their hands and their property to turn out exact duplicates of your own creations?
By the way Notch, I disagree with you on the government research thing. Government is terrible at just about everything. Instead, vital research should be done by the free market, but without the protection of patents or copyrights, as anyone who owns either is automatically a troll.
In a decade or three we'll be able to ask a computer to invent medicines and technology on the spot, so why should we let one person dominate something that is going to be so easy to discover and produce in such a short amount of time?
>you want to profit from all novels that are ever written //
Patents are time limited so that's out.
If Trinity, nor anyone else had seen your novel (as described in full in the patent application he fails to mention that he submits - this is key as copyright is an automatic right but patents are not) would they have come up with the idea?
If they would then why hadn't they?
How long would it have taken them to come up with the idea? More than 20 years?
Suppose the idea of a novel was so revolutionary that it never would have been created by anyone else ... is it worth a monopoly on the idea for 20 years to ensure that you open up that idea and share it with society for the rest of time?
Trinity of course can research your idea freely. She can use your idea. Indeed when she does use it privately she has an idea, based on yours, of a trilogy. Now, you're kicking yourself, Neo, wondering why you didn't think of that. Of course if Neo hadn't submitted his patent application in the first place then she never would have had the details on which to build her idea ...
[+] [-] grellas|13 years ago|reply
Even as someone who feels we should be rid of software patents, I cannot for the life of me understand this statement.
I can believe, philosophically, that relatively high tax rates will benefit a society. That doesn't mean that, even in so believing, I wouldn't do my utmost to minimize the tax that I pay within the rules provided by the law. The question before me when I make such decisions is what makes sense for me as an economic actor, not what the broader policy for society should be. And there is no reason I should "feel bad" for acting in my own self-interest in that case even if I believe the rules should be otherwise.
So too, if I am a founder, I can abhor the idea of software patents while still using the full range of IP protections afforded by the law to enhance the value of my startup. If getting a software patent for my company's early-stage innovations enhances funding valuation, acquisition pricing, and competitive edge in the marketplace - and if the law says this is a perfectly legal way not only to protect but also to gain monopoly protection over intangible assets that my company has and others don't - my decision here will turn on weighing the costs of getting such protection (money costs, disclosure risks, etc.) versus the benefits, the likelihood of qualifying for it, and similar considerations having nothing whatever to do with the abstract policy debate concerning whether the law should afford such protection in the first place. What is more, if I don't avail myself of such protections and if a competitor later does so in a way that hurts my venture's prospects because I now have to surmount legal barriers that wouldn't even have been there had I acted to protect my company's legal interests in the first place, then I have done affirmative harm to the people who trusted me to run my company to its best advantage - whether they be my investors, my co-founders, my employees, or just my own family members who might suffer if that venture should fail. This does not mean I need to blindly pursue some form of artificial legal protections for my company's innovations. It means that I need to make intelligent judgments about availing myself of such protections as opposed simply to categorically rejecting the idea of using them. In short, I need to be smart about protecting my venture using the tools afforded by the law and not forego those tools out of some philosophical preconceptions I have about what the law should be. The "should-be" part of the law is basically irrelevant in this context for most entrepreneurial decisions of this type. And there is certainly no reason to "feel bad" owning software patents if they turn out to be helpful for one's venture in this context.
Maybe this will be seen as narrow, unenlightened, lawyer-driven thinking. It is, however, my universal experience in having dealt with countless founders over many years. Without exception, they have all acted consistently with the pattern I describe and there is no reason they shouldn't have. It makes perfect sense for a rational economic actor. Startups have enough risks as they are. There is no reason to add to them artificially owing to social pressures telling you to "feel bad" for doing what is right for your company.
I know the sentiments against software patents are strong here on HN but there is a big difference between a policy debate seeking to influence Congress and actions that make sense for individual actors having to deal with the realities of the law as it exists today. One can condemn the idea of software patents generally without necessarily passing censorious judgments about the actors who need to deal with the law as they find it.
[+] [-] KirinDave|13 years ago|reply
However, I might note that this approach is easy because it seldom accomplishes disruptive change. If you want to really disrupt a market or community, you will often face difficulty, incredulity, ridicule, and unfair play. So it may actually be in your long term best-interests not to play this way.
As a capitalist-friendly example, I'd like to point to the iPhone. Apple took a huge risk (especially financially); faced extreme difficulty in developing and sourcing the device; faced ridicule on all sides at the merest rumor of the iPhone; and had to fight very hard to not have a carrier completely destroy the product with their (still present) status quo of "differentiating" every product. However, the end result completely disrupted the phone industry. It's also fascinating to note that the "lawyer-driven behavior" has appeared from Apple as other parties have started working furiously to catch up, and finally begun to succeed.
I have worked hard throughout my career to make sure that my name has not ended up on a single software patent. When I was at Microsoft, several were proposed around work I did for Powerset (and 1 was proposed from work I did at Lockheed Martin). I did everything I could to shoot them down and stop them, because I believe they are wrong. Maybe I've hurt my career with this approach, maybe all I've done is piss into the wind, I don't know.
[+] [-] btilly|13 years ago|reply
For me the "oh shit" moment was when I was informed that 2 separate sets of patent trolls had looked at the patents and had valued them at easily over $100 million if used to sue a number of major companies, including Facebook. I'd like to believe that I've created a lot of economic good in my life, but not that much. And that my work could be used do that much damage to other people who have done nothing wrong but happened to independently come up with the same ideas later - that makes me sick.
Luckily by an odd coincidence, the patents taken out in my name have wound up in a place where they are unlikely to be used to cause this harm. But I have no control over them.
The same is true for a startup founder whose startup takes out patents. There is no question that - for the reasons you give - they would be foolish not to pursue patents. However if you pursue patents then your startup fails, your patents can be acquired by a troll for a song. Or if you succeed in being bought out, they will pass out of your power, from which point it is someone else's decision what happens with them. Should they, down the road, be used to damage someone else for more than your startup ever managed to make, how will you feel?
My attitude is that patents are becoming weapons of mass economic destruction, and a serious tax on innovation. Before taking a patent out, I would recommend that you think hard about that fact. Because if you don't think about it now, you will have ample time to reflect and have regret if the worst happens.
Edit: In case anyone is wondering which patents, US7743404, US7774612 and US8209541. The second and third came as surprises to me, but these things happen once the patent office examines the patent. Part of what makes them valuable is that a good literature review was done at the tim. A number of major companies had tried to solve the same problem, but had come up with worse approaches. Then OpenID came along, solved it in the same way that I did, and everyone who uses that is potentially liable.
[+] [-] icebraining|13 years ago|reply
It's hard to give you an example without knowing you, so forgive me if I go with an extreme example. Let's say your company does a physical product, and you find a country where it's legal to employ children, which would reduce your labor costs by 30%.
It makes economical sense to do it, but would you?
Now, you may find it ridiculous to compare child labor with software patents - and I admitted my example is extreme - but the fact remains that Notch and others consider them inherently wrong and therefore believe that people who engage in such behavior are to be criticized.
[+] [-] kbutler|13 years ago|reply
grellas, I respect your opinions and appreciate your contributions here on HN, but this is wrong.
There are countless profitable and legal but unethical actions you could substitute in your analysis that make "perfect sense for a rational economic actor."
[+] [-] linuxhansl|13 years ago|reply
[+] [-] Nursie|13 years ago|reply
It's a shame this seems to be the case in much of the world of business. My stance would be that if I find software patents to be detrimental to society, worthless as anything other than legal weapons to stifle competition, then it would morally suspect to engage in taking them out.
[+] [-] arjunnarayan|13 years ago|reply
It is not incongruous to both
1. ask for the rules of the game to be changed such that we would all move from a sub-optimal Nash equilibrium to a better Nash equilibrium
2. Continue to personally defect and maintain the current sub-optimal Nash equilibrium while calling for the _game_ to be changed such that the sub-optimal Nash equilibrium no longer exists. Unilaterally cooperating results in losing (and evolutionary selection effects might result in all such do-gooders being eliminated).
Note that this is not possible in a Prisoner's dilemma because the point of trying to change Patent law (or change Tax law) is akin to changing the game from a Prisoner's dilemma to something else. I.E. The advocated course of action is _outside_ the game.
[+] [-] adriancjr|13 years ago|reply
[+] [-] unknown|13 years ago|reply
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[+] [-] wissler|13 years ago|reply
[+] [-] batista|13 years ago|reply
Well, I can understand your position, but this is the very definition of selfishness and hypocrisy that you describe.
[+] [-] tieno|13 years ago|reply
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[+] [-] jballanc|13 years ago|reply
> But there is no way in hell you can convince me that it’s beneficial for society to not share ideas.
See, this is what's broken with the patent system. Originally, patents were supposed to encourage idea sharing. The idea being that, if you couldn't protect your ideas, then you were likely to keep them a secret. Patents give you just enough protection that you can share them. You share them, and then if the idea is good, people pay you to use that idea in their own work...
So, how about this: you can get patents, but licensing fees are regulated. Say, you take the average number of patents produced by a company in a field per year, divide the average expenses for those companies by that number, and divide that total by the number of companies in the field (that might be interested in licensing the patent), and that's your regulated patent fee.
This would ensure that, for example, the pharmaceutical industry (where average cost per patent is something like $10 mil) would still be able to charge appropriately high fees to license patents. The software industry, on the other hand, where patents are handed out like candy, and the number of companies that could license your patent is huge, would end up with licensing fees of something like $10.
I'd pay $10 for your software patent.
That's probably all it's worth.
[+] [-] mtgx|13 years ago|reply
1) shorten the software patent period to 3 years
2) dramatically decrease the vagueness and triviality of software patents somehow
Otherwise, you end up like in the mobile industry, where something like 250,000 patents exist in any given phone, and I assume most of those are not enforced, but if they were regulated, and manufacturers were forced to pay for them by default, I could easily imagine patents costing more than the product itself. This is why you need to drastically reduce the number of patents as well.
[+] [-] gridspy|13 years ago|reply
No-one did any scientific tests at the time to ensure that they were a good idea in the first place. Now those who do retroactive studies are ignored.
[+] [-] jedbrown|13 years ago|reply
[+] [-] antninja|13 years ago|reply
The original idea of Marxist communism was very humanitarian in its intentions. We know how dictatorial it turned out when it was implemented. Good political theories that turn bad typically didn't take all parameters of reality into consideration. They're utopias.
[+] [-] huhtenberg|13 years ago|reply
This way a 5 minute brain fart by a recent graduate won't be patentable, but a clever optimization technique that stems from several man-month of testing on a cluster of Crays will be.
[+] [-] flexie|13 years ago|reply
Software is already protected with copyrights as literary works. Copyright protection is not as broad as patent protection. It doesn't prevent competitors from writing a program with similar features but different source code, but it does protect against competitors copying the source code.
[+] [-] masklinn|13 years ago|reply
Although probably not, unless the parent has all the code needed to implement whatever the patent covers in the language I'm using and correctly following the conventions and patterns of the language and platform.
That could be worth $10.
[+] [-] noonespecial|13 years ago|reply
So there it is: Patents are like the toxic waste of innovation. You promise yourself to keep them safely contained, but its hard to do in the real world and once they spill, they contaminate everything around them, making the ground uninhabitable for 20 odd years.
Feel bad.
[+] [-] shadowmint|13 years ago|reply
That said, I think the point he raises is interesting. There are some ideas which are entirely algorithmic and are hard.
Specifically complex technical standards like video compression and encoding, machine vision, wireless signal processing, etc.
These are things that require a significant capital outlay to invest in research to solve the problem, but once it's solved... well, someone else can clone the logic and make a free version. So you patent the process.
If you dont, you cant guarantee a return on investment in the project, and thus you dont get investment in the project, and ultimately the problem doesn't get solved.
Its an interesting thought experiment, and it makes for a good argument for patents existing. ...but then, where do you draw the line between "complex and costly" and "stupid and trivial".
It's an argument I've heard a lot; I think it's nonsense too, but it convinces a lot of people. It'd be interesting to see a thoughtful critique of that argument, rather than the 'stupid patents are bad' argument, which, basically everyone already agrees on.
[+] [-] wpietri|13 years ago|reply
Well, it doesn't get solved by for-profit actors as a way to make money.
But it can get solved by government-sponsored research. You can look at patents as a complicated tax system intended to fund innovation. We might be better off just making it an actual tax system that funds education.
It can also get solved by foundations, or by for-profit actors working in non-profit-seeking ways. Linux is a great example of innovation in that model. Industry consortia are an interesting model, as is something like Underwriters Laboratories.
[+] [-] powerslave12r|13 years ago|reply
Kickstarter and clones are the answer.
[+] [-] SagelyGuru|13 years ago|reply
Clever and/or sophisticated perhaps but not hard. The hard parts are the mathematical foundations, done by mostly dead people who are not getting a penny out of it.
>If you hold a software patent you should feel bad about it.
The problem is that they are sunning their arse in the Bahamas and are feeling great about it.
[+] [-] astrodust|13 years ago|reply
History is littered with examples of people that failed to patent their invention only to be beaten over the head by someone that did. In a patent-happy society there's no room for innovators, only lawyers.
[+] [-] natermer|13 years ago|reply
So, basically, the person that holds the patents is guaranteed to have the ability to sue anybody that infringes on the patents. This is backed up the ability of the government to inflict violence on anybody that infringes.
And what is happening is that the system is getting worse.
USA was unique in that it had a first-to-invent rule governing patents. That is if you are the first inventor of something you have the right to the patent even if somebody else pays off the government first.
However, soon it's going to be first-to-file. Meaning that even if you invented something first you can still infringe on a patent if somebody else is able to get to the patent office and pay them off first.
This will go into effect on March 16, 2013.
Now people will argue that this streamlines the system and makes it much easier to identify people that have the legal ownership of a particular patent and thus reduce fees and the expense of taking people to court....
But seeing how patents are generally terrible things then making something that is terrible better at being terrible is not really the sort of 'reform' that we should be looking forward to.
[+] [-] citricsquid|13 years ago|reply
Not sure I agree with this point. All professions are different, some make their money long term by providing value and gaining experience, some make their money by just doing work and some make their money by providing a product over time.
A (good) hairdresser for example makes their money because of reputation, if they do great work for customers they can charge more, therefore their previous work does matter, just in a different way. An actual example of people that get no long term value from the work they do are retail workers: a shelf stacker doesn't get a "better" shelf stacking job stacking "better" things if they can stack shelves well.
If people support the idea that content creators don't "deserve" to make money long term then content creators will just go further down the Steam / EA route: don't provide a product, provide that product as a service. Instead of purchasing a copy of a game, you rent access to it on a service which can be revoked at any time and is 100% controlled by the issuing company. This is what Steam is...
[+] [-] antjohnst|13 years ago|reply
I agree that something like a software patent may be a bad idea, but you have to realise that a lot of people read your stuff and get influenced by this 'half of the patent picture' and then leave with the wrong idea and start criticising legitimate patent areas.
For example: Company A spends $200M of investors money finding a new anti-depressant. Ok so they invested all of this money, now they need to spend 8 years proving to the FDA that it is safe to use, there goes another $300M. 'Generic pharmacies inc' says hey, thanks for doing all that work, now we can manufacture that drug in our factory for 1c/pill and make a little bit of money, good luck recouping your research money because we just got all the cheap sales. Company A goes bankrupt, the investors lose their money. Company B and C notice this industry is poor for research, and decide never to spend that money finding an anti brain-tumor agent.
However, if company A had patented their idea, then they will have around 10-15 years of patent-protected time (because they have to patent before divulging it, and by the time you get through trials and approval you can often have just a few years left) to sell their drug at a price where they can recoup their $500M, and invest in more bigger and better research. Meanwhile, whilst patented, other companies can see that research and build upon it with their own research - they just cant rip them off with the money they are owed in that time by selling it without permission. If they really want to sell it, they can ask the company to license it to them, and pay royalties. Later, the patent expires, as all of them do, and then generic company is free to manufacture it without paying the inventor a cent.
Is this not a valid reason for patents? I'm sorry notch but you cant copyright a pill, even though that copyright law may protect your own interests (minecraft)
[+] [-] gfodor|13 years ago|reply
[+] [-] flexie|13 years ago|reply
In the pharmaceutical world founders and employees more often have large opportunity costs by starting or joining a new venture. They are usually in their 30s or 40s with huge student loans, mortgage and kids. They forgo high incomes if they join a start-up. The road to the market is much longer (often more than 10 years). Investment in machinery is also at a completely different level. Drug development usually entails million dollar investment in specialized equipment. Perhaps the most costly aspect of drug development is the regulatory obstacles, such as getting approvals.
In contrast, IT companies are cheap. Founders often have little formal education (Microsoft, Facebook, Skype) and the road to market is much shorter. IT start-ups expect customers (or at least users) in a matter of weeks or months. Many IT companies can get to proof of concept with almost no investment in equipment. The founders simply bring their laptops on board). Regulatory concerns, if any, can usually be dealt with by one lawyer in a few days.
I cannot imagine anyone investing hundreds of millions of dollars in drug development over the course of 10 years without some assurance that competitors can't "steal" their idea. Usually that assurance is a patent or a trade secret. But keeping secrets over 10 years with employees coming and going - that's difficult.
tl;dr: Once you have an idea about, say a shopping cart in a web store, it can be implemented in a few man-weeks. Turning an idea about a new drug into a product often takes thousands of man-years. Whereas the institution of patents seems harmful in the world of software development, it may be necessary in the world drug development.
[+] [-] dasil003|13 years ago|reply
Sure drugs are expensive to development, but I'm not sure that the twisted system of incentives is beneficial overall. Of course the industry will claim that none of this research would happen without patents, but of course they are set up that way and can't imagine it any other way. I doubt that humanity as a whole would simply stop advanced medical research because the economics changed.
[+] [-] slowpoke|13 years ago|reply
Besides - and I've argued this countless times in the past - most medical research is already funded by the government. So it's not like innovations in medicine would suddenly grind to a halt. Maybe we'd see less useless shit like the newest "Anti-Aging" creme or other complete wastes of money.
Here's another fun fact: only about 15% of the income of the big pharma concerns actually goes into research. Most of it goes to advertisement. How in all hell is that a good use of money?
Furthermore, this system incentivices the utterly wrong things, and this remains my strongest argument against patents especially in pharma. You aren't encouraged to find cures, things that stop the cause of a sickness. The most profitable way is to find treatments for symptoms, which bind the patient to your meds, often for a long time, possibly until death. The best example would quite likely be AIDS. This is nothing less than completely, totally, absolutely, irredeemably and unexcusably fucked up.
[+] [-] taligent|13 years ago|reply
This sounds ridiculous. Most founders I've seen had degrees.
And for the three companies you listed. Gates and Zuckerberg both went to Harvard but dropped out. And Zennström had an MBA and Masters of Engineering/Computer Science.
[+] [-] bjornsing|13 years ago|reply
The main problem IMHO is the cultural definition of "obviousness" among patent examiners. They seem to think
a) that (in practice) all meaningful prior art is patented so all they have to do to find it is search their patent databases and
b) the slightest difference between prior art and a new "invention" makes the "invention" non-obvious.
IMHO prior art should be whatever you can find in library and (more importantly) on the Internet. The test should be that the difference is non-obvious "to a person skilled in the art", i.e. the inventive step itself has to be non-obvious.
[+] [-] stcredzero|13 years ago|reply
The patent database is a tool, it's not reality. The way that patents are written and treated is also out of touch with reality.
[+] [-] patrickmay|13 years ago|reply
[+] [-] aayush|13 years ago|reply
The way I see it, patents are designed to improve capitalist behaviour, once where your ideas are protected: the march towards innovation is strictly optional.
It's time instead to consider how dependent our world is on iterative practices. Everything we build on and upon is no longer unique: it's all inspired, and improved.
Jim Jarmusch said this once:
>Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows.
To embrace iteration, we need to get rid of patents. That much is certain.
[+] [-] kenjackson|13 years ago|reply
[+] [-] taligent|13 years ago|reply
One sole inventor who developed 5,127+ prototype designs and clearly brought something unique to the marketplace. Gave his whole life and money to the product.
Almost immediately after it came out Hoover copied the design and basically would have put him out of business.
The patents were the ONLY thing that protected him from a huge multinational who didn't invent anything.
Now Dyson went on to invent a whole range of very cool gadgets which never would have existed without patents.
[+] [-] zbowling|13 years ago|reply
I have several (although all of them are "owned" by my former employers). We filed them not to attack, but to defend. I hate software patents but I don't feel bad for having them.
[+] [-] natermer|13 years ago|reply
I have to vehemently disagree with this.
Copying ideas and making incremental improvements on existing inventions is the core of what makes technological progress possible. Even just plain 'ape-ing' ideas is vitally important to getting improvements available to the public. This works best in a decentralized environment. Fundamentally it is my contention that a 'wild west' scenario will yield faster and more meaningful human progress then a carefully regulated and regimented system.
Assuming this is true: Then the patent system, as flawed as it is, is still superior to what was popular before it... which was official government academies were scientists and inventors were effectively wards of the state. This is uncomfortably close to what you are advocating.
In that sort of system internal bureaucratic politics and 'administrative law' (which is a term meant to indicate rules-decided-by-committee) dictates the distribution of resources and activities of scientists rather then merit or actual need. I do not think that is a effective environment for the creation of innovation.
I say that it's more freedom that is needed, not less.
[+] [-] gsb|13 years ago|reply
Imagine if every time a patent was invalidated by the defence at trial, the patent office itself was ordered to pay defence costs.
As one of the few government profit centers, I think you would suddenly find a big improvement in the standard of patents granted.
[+] [-] robomartin|13 years ago|reply
Sadly, I must say that there are tons of patents out there that are nothing more than ideas or concepts turned into patents. I've run into lots of them in the hundreds of patents I must have read over the years. They fact that they are or were mere ideas becomes a glaring reality when you look into actually implementing the patent and discover that nothing works as advertised.
This is another sad failing of the USPTO: While the rules of the game say that ideas are not patentable, in reality, they are. So, yes, I contradict my first statement. I still prefer to speak with more precision when it comes to patents and not say things like "patent you idea" or "people like to file patents to protect their ideas". You are not supposed to be able to do that.
[+] [-] MysticFear|13 years ago|reply
"devices that require communication with a server to perform a license check to prevent the unauthorized use of said application, including, but not limited to, Mindcraft."
[+] [-] scott_meade|13 years ago|reply
Sorry, but Notch has it backwards. Patents are designed to for sharing - not for preventing sharing. (Patent holder shares information on how they implemented something in exchange for being granted temporary rights to deliver on the method implementation.)
I know I'm being naively simplistic in that statement. Yet so is Notch in his analogy. I've found no one who claims that "it's beneficial for society to not share ideas". Setting up a straw man makes for juicy debate, but not great argument.
[+] [-] chmike|13 years ago|reply
The problem is patenting the concept of a novel. This is really questionnable. How much inventive is that ? This is where the line is fuzzy to set.
[+] [-] Greendogo|13 years ago|reply
By the way Notch, I disagree with you on the government research thing. Government is terrible at just about everything. Instead, vital research should be done by the free market, but without the protection of patents or copyrights, as anyone who owns either is automatically a troll.
In a decade or three we'll be able to ask a computer to invent medicines and technology on the spot, so why should we let one person dominate something that is going to be so easy to discover and produce in such a short amount of time?
[+] [-] pbhjpbhj|13 years ago|reply
Patents are time limited so that's out.
If Trinity, nor anyone else had seen your novel (as described in full in the patent application he fails to mention that he submits - this is key as copyright is an automatic right but patents are not) would they have come up with the idea?
If they would then why hadn't they?
How long would it have taken them to come up with the idea? More than 20 years?
Suppose the idea of a novel was so revolutionary that it never would have been created by anyone else ... is it worth a monopoly on the idea for 20 years to ensure that you open up that idea and share it with society for the rest of time?
Trinity of course can research your idea freely. She can use your idea. Indeed when she does use it privately she has an idea, based on yours, of a trilogy. Now, you're kicking yourself, Neo, wondering why you didn't think of that. Of course if Neo hadn't submitted his patent application in the first place then she never would have had the details on which to build her idea ...