Private Anti-Patent Enforcement

One thing that intrigues me are ‘grass roots’ movements to sanction behaviour. I’m presenting a paper about this in scholarly publishing at the forthcoming American Economic Association meetings. However, here I wanted to talk about a skirmish that happened over the last few days in the app economy.

A couple of weeks ago, a small company called Information Architects released an app, Writer Pro. It is an app that builds upon a previous app of IA’s that aims to provide ‘distraction free’ writing (that app had 1 million downloads). I wasn’t interested in this so much for the distraction free part but because it may be a good platform for writing blog posts — something like Medium but not on the web. What Writer Pro does is have an interesting evolution from notes to writing to editing to reading. It was the editing part that interested me. Despite my poor reputation for typos etc (something that is a cost of my speedy writing style) I would like to post things that are better edited. Writer Pro offered some tools that might make that so and I am trying it out.

One of the new features was something called Syntax control. Basically, it allows you do decompose your prose in a neat way (although not to avoid painful rhymes!) and make sure you aren’t repeating things too often, have too long sentences etc. Here is what it looks like.

Screen Shot 2013-12-27 at 10.04.56 AM

Suffice it to say, it looks like it can help but sadly for me the other features didn’t provide the Medium-like interface I had hoped for. I’ll see whether it proves useful or not.

But here is what IA wrote about Syntax control.

Syntax Control — distinguishing a specific aspect of the text to assist in editing — is a solid innovation, one we’ve been working on for more than four years. As with every serious design, once you have seen how it works and how effective it is, it seems obvious, but it was a long road to get there. We’ve trademarked and obtained patent pending for Syntax Control. If you want it in your text editor, you can get a license from us. It’s going to be a fair deal.

The crossed out part was initially not crossed out and that is what gave rise to controversy. It has since been replaced with “If you want to use it in your text editor, just give us credit for introducing it.”

Now to an economist this doesn’t seem like the most troublesome defence of intellectual property one might hear. We have something innovative, we are moving to get a patent but we will give you a “fair” license. There is nothing illegal about it and, on the scheme of things, it is looking for licensing rather than exclusion. That is, assuming it can be patented which is a legal matter too.

But in the “app community” it provoked a very strong reaction. Here is Jonathan Portisky:

I’ve read this paragraph probably a dozen times now and I can think of no better word to describe it than “smarmy.” It’s not just the bravado in Reichenstein’s insistence that Syntax Control is such a solid innovation, it’s the pre-emptive accusation that any similar feature in an app would be “cheap.” This isn’t just an insult, it’s a threat.

When I hand my money over to a developer, I want to at least feel like I’m the reason their product exists, that it otherwise wouldn’t but for my interest, support and cash. Goading other developers into forking over licensing fees undercuts that feeling for me. While the full patent application isn’t available yet, Reichenstein tweeted an image that has “Method of editing text in a text editor” listed as the “Title of Invention.” That sounds precisely like the sort of broad software patent that discourages innovation.

He then actually makes some good points about how innovative this idea is and raises basic issues on patentability but the thrust of his argument is not based on this. See also here. Even if it is a distinct patentable innovation, Portisky objects to the very act of trying to patent it.

All of this leads me to the conclusion that I should stop supporting Information Architects and I suggest you do the same. I bought iA Writer for the Mac and iOS long ago, but from here on out, unless Reichenstein and compnay do an about face, I won’t be giving them a dime. … There is no need to support a smarmy, litigious operation like Information Architects. There is so much innovation coming out of other developers. Now get writing.

It seems that trying to patent things is something IA has done for some time. Here is a previously rejected patent application for “focus mode.” So this isn’t just ‘following lawyer advice blindly’ but seems to be an actual strategy.

The backlash seems to have been widespread. There was even this poem with a Christmas theme. Marco Arment was more strident. His view is interesting as he wrote Instapaper and charged for it like a product only to have the same idea fall into other free apps (including Apple’s own Safari). But Instapaper still has a loyal following based on its performance.

While at times the arguments are unclear, in my reading, there is enforcement of a norm (whether established or not) that small software developers shouldn’t try and patent software. This appears to arise because of the way software patents have been used to block small developers — something we are all concerned with. But this push is to require small developers not to use legal protection — hence, it is private anti-patent enforcement.

This time the backlash has worked. Here is a twitter exchange with IA that highlights the issues — start at the bottom. At the end of it, IA throws in the towel and backs off entirely.

It is hard to know what to think about this. On the one hand, if there are laws designed (however misguidedly) for protection, then people — regardless of their size — should be permitted to avail themselves of them. I don’t think that most economists would rate a small innovator who actually innovated as high on the list of evil IP exploiters (yes, I know there are issues on whether they innovated here or not but the debate is not really about that). On the other hand, business is business and if the customers don’t like it, that is a constraint you have to face. IA pushed against that constraint.

I think what this represents is a broader view on innovation that economists and others in academia have often failed to appreciate. The tone of the discussion suggests that how an app should win in the marketplace is on performance. App developers spend lots of time lamenting the lack of willingness of consumers to pay for good apps and, at the same time, calling for “support” of those developers by buying those apps. They did it in this backlash by pointing people to text editing apps worth supporting. The notion is that you should make profits in the app economy by providing a better product than the next developer but not by protecting a feature from imitation. In theory, that is a way to make profits but we also know the economic argument on the other side of that.

In my view, it is worth recognising that winning on performance is a distinct route to profiting from innovation as winning by control. App developers and many consumers (including myself) would prefer the world where performance is key. But there is nervousness here. If a feature actually is expensive to produce and can be easily copied, then a lack of control may be a problem and deterrence. The private anti-patent enforcement may make that distinction but it is hard to tell at the moment.

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