Whoops, I'm not wearing any Patents

I just read Ed Merk's post and there must be something in the air, because the issue of patents has also been weighing on my mind a lot lately. So much so, that I have to take a break form my cloistered documentation and software polishing efforts to write about it.. (And because I'm riffing on Ed, I'll even throw a few pictures in.) That's because I'm beginning to wonder whether it is really worth it for a small company or individual to innovate at all. You can read down to the bottom for my nightmare scenario, but it begins with..

So I have an idea. Or perhaps I work it out with a collaborator, or it just sort of emerges a in discussion online. (The best ideas are often those that you can't even track down to a single person.) "Yeah, and if we did that, then we could..!" The idea isn't good or bad, but it does feel original. I don't even know whether or not I'm the first person to think of it.



Now, I know two things from being around the world of software and science for many years:

• There are very few ideas that are really, truly, independently new.


• Good ideas are the easy part -- the hard part if actually making them work. It's not the thought, it's the doing.

I love to play with ideas and brainstorm, but I have no interest in being the person who can say he or she had a really cool idea and maybe even drew a pretty picture of it. I want to be a person who helps create something that people directly use and say "wow, that's really cool!" It's not the idea of multi-touch that really matters, it's Apple's insanely good implementation of it. (In fact, I remember discussing virtual keyboard / mouse interfaces with friends in college twenty years ago. None of us cared whose idea it was, just that it was an interesting idea. I'm sure that you have many of examples from your own time on earth.)



And yeah, yeah, "you don't patent ideas, you patent inventions". Bullshit. In software there is never a clean line between an idea and an implementation. An implementation is only a relatively more formal encapsulation of an idea. And the patent diagrams used to support a typical "reduction to practice" are nothing more than the the worst kind of PowerPoint engineering -- the ultimate vapor ware, where most of them stay until the lawyers decide they need a cudgel to bash someone's head in with.

The very last thing I want to do with my limited time is invest it in checking whether someone has thought of it or something similar first. I'd much rather build it. (And if If someone else has already built it, I'll probably be able to easily find it.) Ever since I read Neil Stephenson's Anathem I've been pining for a real-world group of idea mavens that we could go to find out exactly how our "original" idea really isn't.

By the way, the basic issue is not confined to the commercial world of software. A key contributor to modern science's descent into intellectual bankruptcy is the "publish or perish" dictum. This imperative has caused S/N to drop to near perfect randomness while at the same time it has required researchers to expand a great part of their time sifting through the noise for every conceivable attribution. Missing a single one invites academic approbation at best and the end of a career at worst. So, how to protect yourself from that bad outcome? Only write about minor excursions from ideas that are well established! Then, all you have to do is crib the list of citations from a review article and paste in a few new articles from recent journals. I hope I haven't punctured any bubbles for those who still harbor romantic visions about the pure world of academic research, but that's the way the vast majority of science is done, and because of that the only rational thing to do, at least for someone who seeks to avoid risk and protect their investment in their career.

Well, where does this basic sick gestalt -- this paranoia that someone else might (god forbid!!) take credit for our wonderful idea -- leave us back in the land of hard-knuckled software development? With the big guys all in a circular standoff -- the classic corporate MAD. Sometimes it comes to a head as in the current Nokia / Apple standoff, usually when one company has nothing much left to lose. And of course, with the situation where some little guy sneaks up to the circle and holds all of the big scary dudes for ransom.

But to me, that's not even the greatest evil..

Where does this leave an independent small company like mine? Or an individual Eclipse contributor? Guess what.. we might not realize it yet, but we've all wandered into the middle of a fight, and these guys are carrying around assault rifles. I didn't even bring a knife, how about you?

Hey, that's ok. Everyone know's we're harmless and we can walk around pretty much unmolested.

But then our pretty good idea turns out to be a pretty damn good idea. Or rather, our implementation of it works really nicely and people like it. In fact, it's such a good implementation that our project and software start to do pretty well. Maybe we start eating a bit of someone else's lunch, or they start to notice that our's looks pretty appetizing. And they're a whole lot bigger than us. Guess what. Do you think these guys will forget that they've spent the last twenty years developing a gigantic arsenal of three-quarter-assed ideas? What's the bet that they're able to dig a few things out of that arsenal (mayday...mayday..my analogy .. is ...breaking up...) that look pretty-much-like-not-quite-but-nearly-perfectly-exactly-the-same as ours?

So, my nightmare is actually worse than Ed's. It's bad enough sharing a really good idea with some folks and discovering that you can't actually implement it because IBM has already sat on it. How about spending years working on something only to have it taken away? It makes me think that I should forget doing anything new, because that scenario is just too painful to contemplate.



I don't know if this nightmare is real or not. If you think you can talk me out of it, please try. But if I've managed to give you nightmares too, is there anything we can do to wake up? Because even if I wanted to, I can't afford to pay the kind of money that participating in this blue-suited, white-collar protection racket seems to demand.

[Update: Edited for grammer.]