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Hugh Pickens writes "Wheels are the archetype of a primitive, caveman-level technology, and we tend to think that inventing the wheel was the number one item on man's to-do list after learning to walk upright. But LiveScience reports that it took until the bronze age (3500 BC), when humans were already casting metal alloys and constructing canals and sailboats, for someone to invent the wheel-and-axle, a task so challenging archaeologists say it probably happened only once, in one place. The tricky thing about the wheel isn't a cylinder rolling on its edge, but figuring out how to connect a stable, stationary platform to that cylinder. 'The stroke of brilliance was the wheel-and-axle concept,' says David Anthony, author of The Horse, the Wheel, and Language. To make a fixed axle with revolving wheels, the ends of the axle have to be nearly perfectly smooth and round, as did the holes in the center of the wheels. The axles have to fit snugly inside the wheels' holes, but not too snug, or there will be too much friction for the wheels to turn. But the real reason it took so long is that whoever invented the wheel would have needed metal tools to chisel fine-fitted holes and axles. 'It was the carpentry that probably delayed the invention until 3500 BC or so, because it was only after about 4000 BC that cast copper chisels and gouges became common in the Near East.'"

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I think almost everyone I know in the software development field
has a deep hatred for patents and the way they've been used in our
field. I've had a post on my todo list for ages about this and have
finally been moved to write about it after a particularly
good piece of investigative journalism
by This American Life.
The short form of my post is that while patents (even software
patents) are a good idea in principle, in practice they have turned
into an unmitigated disaster and would be better scrapped.

To begin, however, I'll say why patents are a good idea in
principle, indeed they may be one of the most valuable 'inventions'
in human history.

A good argument for patents playing such a central case in human
development is made by William Rosen in his book The Most Powerful
Idea in the World
. Rosen's book looks at the Industrial
Revolution which he characterizes as one of the most important
events in human history, one that made a step change in human

A skilled laborer—a weaver, perhaps, or a blacksmith—in
seventeenth-century England, France, or China spent roughly the
same number of hours a week at his trade, producing about the same
number of bolts of cloth, or nails, as his ten-times
great-grandfather did during the time of Augustus. He earned the
same number of coins and bought the same amount, and variety, of
food. His wife, like her ten-times great-grandmother, prepared the
food; she might have bought her bread from a village baker, but
she made pretty much everything herself. She even made her
family’s clothing, which, allowing for the vagaries of weather and
fashion, was largely indistinguishable from those of any family
for the preceding ten centuries: homespun wool, with some linen if
flax were locally available. The laborer and his wife would have
perhaps eight or ten live offspring, with a reasonable chance that
three might survive to adulthood. If the laborer chose to travel,
he would do it on foot or, if he were exceptionally prosperous, by
horse-drawn cart or coach, traveling three miles an hour if the
former, or seven if the latter—again, the same as his
ancestor—which meant that his world was not much larger than the
five or six miles surrounding the place he was born.

And then, for the first time in history, things changed. And
they changed at the most basic of levels. A skilled fourth-century
weaver in the of Constantinople might earn enough by working three
hours to purchase a pound of bread; by 1800, it would cost a
weaver working in Nottingham at least two. But by 1900, it took
less than fifteen minutes to earn enough to buy the loaf; and by
2000, five minutes. It is a cliché, but nonetheless true, to
recognize that a middle-class family living in a developed
twenty-first-century country enjoys a life filled with luxuries
that a king could barely afford two centuries ago.

-- William Rosen

The change wrought by the Industrial Revolution is almost
unimaginable. We think our current era is one of constant change, but
that phrasing captures what we forget. These days we are used to
change, but before the Industrial Revolution human life changed very
slowly. The biggest change the Industrial Revolution unleashed was
change itself.

Thus I think few students of human history doubt the vital
importance of the Industrial Revolution, but this raises a couple of
important questions - why did it occur when and where it did? What
was so special about late 18th century England that set this steam
train off? Rosen's view is that patents are the key enabler, because
they provided a financial incentive and platform to support inventors
and entrepreneurs. Without patents only wealthy people (or those with
wealthy patrons) could afford to innovate, and there was little
incentive for them to do so.

I find Rosen's argument persuasive and thus think that
patents were not just a Good Thing but one of the Best Things to have
happened to our species. So why do I loathe software patents so much?

It boils down to the fact that patents generally have become very
debased from the animal that enabled the Industrial Revolution. The
primary debasement is that of novelty. The whole point of
patents is to grant a (limited-term) monopoly to something that is
new. The US
patent law
says you can't have a patent if "the subject matter as
a whole would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains." This boils back to the English 1623 Statute on
Monopolies[1] which
started the notion that a patentable invention is something that is
both novel and useful.

The core problem with software patents is that this key principle
has been tossed aside. Everyone in the software field has seen a
parade of patents which do nothing but try to claim rights on
techniques that have already been in use for years, let alone
developments that while new, are are still obvious to those of us with ordinary
skills in programming.

Although this debasement is quite enough to ruin the integrity of
software patents, there are some other debasements worth mentioning
too. Patents were originally created with a limited time in mind -
the 1623 law placed them at fourteen years. This, of course, at a
period of time when change was much slower than it is now, let alone
than it is in our field. Proper software patents should hold for a
shorter period than that. Further debasement occurs in lack of
specificity - most software patents are ridiculously broad and vague,
while patents were originally seen as narrow and specific. Narrow
patents encourage innovation by incenting people to think of
different ways to solve the same problem, broad patents
snuff that innovation out.

The result of all this debasement is a world where patents no
longer incentivize and communicate new inventions, but where they are
weapons to be used to fight legal battles. For large companies they
are, at least on the surface, an annoying distraction and cost. But
the real damage they do is to small outfits, that can't afford the
time and money to fight a patent lawsuit. Thus we see patents used for
shakedowns - stifling innovation.

The tragedy is that patents have become a source of reinforcing
existing powers. A big company may find patents a significant
inconvenience, but in the end patents are good for perpetuating the
current power-holders because they can snuff out the smaller ones. This is why
it's hard to change the system, those with the power have no
incentive to give it up.

I find it particularly depressing that my fellow programmers are
complicit in this tragedy. It's not uncommon for programmers to talk
about patents they've been involved in getting and how they know how
absurd they are. I know it's easy to get on a high horse here, but I
do think that any programmer who cooperates in getting a baseless
patent should be ashamed of themselves. It shows the kind of lack of
responsibility that undermines any justification we have to be
treated as professionals.

In theory, I'm not against software patents if we were able to get
back to the core beneficial principles of patents and apply them
properly. This would imply developing a process that would ensure
that patents were only granted for truly novel ideas. But unless such
a process were properly put together, I'd rather see software patents
eliminated completely. A world without software patents would be
better than the mess we're currently in.

Further Reading

There's a huge amount of material that's been written about
patents out there. Tim Bray's piece last year on giving
up on patents
links to a number of good sources. A couple of
these point to evidence that software patents have reduced innovation.

Planet Money did a follow up podcast to the one on This American
Life, with links to the studies they summarize.

"At a time when our future affluence depends so heavily on
innovation, we have drifted toward a patent regime that not only
fails to fulfil its justifying function, to incentivise innovation,
but actively impedes innovation." - W.W. of The Economist

I rather like its original name: "Act concerning Monopolies and
Dispensations with penall Lawes and the Forfeyture thereof"

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