Comment by csallen | Hacker News Reader

Comment by csallen | Hacker News Reader

The patent system as it exists today is a far cry from what the founders had in mind when, in the Constitution, they granted Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Nowadays people think of patents as a way of protecting the "property" of inventors, and so patents are granted and enforced according to that principle, regardless of whether they promote or hinder progress. The usage of the words "theft" and "piracy" to refer to patent and copyright infringement is a symptom of this state of mind.

Thomas Jefferson et al would have called this nonsense. By its very nature, an idea -- once divulged -- cannot be someone's property, and it should not be treated as such. To prevent the free flow of ideas through a populace is, in many cases, harmful. (Imagine a group of hunter gatherers in which one family has patented the idea of farming.) At most, limited monopolies should be granted to prevent situations in which nobody is incentivized to create due to rampant copying. But we still have to be judicious in granting these monopolies:

    "...it may be observed that the nations which refuse monopolies of invention
    are as fruitful as England in new and useful devices."
    -- Thomas Jefferson

    "But grants of this sort can be justified in very peculiar cases only, if at
    all; the danger being very great that the good resulting from the operation
    of the monopoly, will be overbalanced by the evil effect of the precedent; and
    it being not impossible that the monopoly itself, in its original operation,
    may produce more evil than good."
    -- James Madison

It's painful to see copyrights and patents today accomplishing the polar opposite of what they were intended to. But we've been gradually heading in this direction for the last 200 years.

In my opinion it's a combination of (a) allowing businesses to have too much say in law-making, (b) Congress + the populace not being sufficiently educated about the implications of copyrights and patents, thus giving more power to the natural tendency to think of ideas as property, and (c) the Supreme Court following overly non-interventionist policies and allowing Congress to make unconstitutional decisions.

I find this constitutional fundamentalist attitude to be just as wrong. The founders had no idea how the future would turn out. Lets just face facts: the idea of owning knowledge can never work out fairly thus patents in themselves are unethical and unfeasible. The system should just be retired. The founders were wrong about this the same way they were wrong about slavery and other 18th century issues. They are forever limited by their 18th century outlook.

There is no way you can have a "fair" patent system. Its like having "fair" slavery. Just let it go.

I think there needs to be some way to give companies an opportunity to recoup their investment in new ideas. I'm just not sure what we have now is working.

They have the same chance everyone else does: the market.

Without patents, drug research and development would have to be nationalized. The costs are enormous and drug prices drop 90% in the US after patent expiration. I would rather have new drugs and high prices for a few years than no new drugs at all or nationalized drug r&d.

I think the HN community's approach is wrong: patent abolishment isn't optimal, heavy patent reform is. Patent terms should be regulated and adapted in each industry like the Fed Funds Rate, not like the 10 commandments. Software is definitely an example of where they should be abolished, though.

I agree. The universe isn't so perfect a place that we can consistently count on all-or-nothing strategies. Sometimes we have to get a little messy to devise a working system. Drug research is a great example of an industry where patents really are necessary to promote the progress of science.

Some drug researchers might disagree.

Open Source Drug Discovery - http://www.osdd.net/

Research article on PLoS; "A Kernel for Open Source Drug Discovery in Tropical Diseases" - http://www.plosntds.org/article/info%3Adoi%2F10.1371%2Fjourn...

> Drug research is a great example of an industry where patents really are necessary to promote the progress of science.

It's too easy to say it this way. Any data to show us why the case of the pharma is so different from others ? The costs involved in the pharm industry depend heavily on: - government regulation - expected returns

It's not evolving in any kind of "free market" at all. It's a very poor example to use to justify patents.

Good point, enough reform in this area may make patents totally unnecessary. I shouldn't have called it a good example without knowing more about it. However, my intuition is that there could exist a situation or industry in which patents are justified. We should be careful not to dismiss them wholesale, and instead should only dismiss them in areas where we can find superior alternatives.

Drug research and development is largely nationalised, at least if we are talking about drugs for preventing or curing the most virulent diseases and not about stuff like viagra.

Viagra was a by-product/side-effect of a (ineffective) drug for angina and hypertension. I'm not sure how much UK government money was involved in that work, but I'm assuming a lot, as we're generally all for that kind of thing.

Also of relevance, the UK patent on using a chemical that gives you an erection as a cure for impotence was thrown out for being obvious. But the patents on how to mass manufacture it are still in effect.

That's cool, but given the subject matter it is hard to treat it with anything other than absolutely no, you-know-what.

The reason drugs are so expensive to develop is the FDA testing. So instead of patents the FDA can just enforce a rule to not allow generic drugs unless they've gone through the same rigorous testing process the original guy did.

This is probably something the FDA should do anyway. Generic drug makers can look at a drug's signature, but there are so many other variables that can affect how a drug performs (quality control of the factory, quality of ingredients, recipe, procedure, etc.) that the FDA should require generic makers to go through the same testing process because they're different drugs.

The generic drug makers will have less overall expenses to bring a new drug to market (because someone already figured out a particular protein sequence that works in XYZ manner), but the original inventor will have time to milk the market as the first-to-market, encouraging innovation, and we can still get rid of our awful mess of a patent system.

Generally if you've built up a whole system (like the patent system), and it's really only beneficial for a select few (pharma), then maybe it'd be better to design a different system just for them (like the one proposed above) and don't make everyone else suffer the consequences.

The FDA can also go overboard. Recently (~1.5 years ago) they seized 'birthing pools' as 'untested medical devices.' These are basically inflatable pools for women that want to have water births. To give some context, the operating table in a hospital does not qualify as a medical device (and therefore no FDA testing), but apparently inflatable pools that women give birth in require FDA testing.

And drug research is largely nationalized. Drugs for "important" diseases are typically discovered by academic researchers and the R&D of a pharma company is either focused on a) how to scale up production of the drug b) how to market the drug c) drugs to cure lifestyle issues and psychological issues. Anything else is too risky or requires too long of an investment timeline.

To be fair only some of the founders were wrong about slavery.

Even back then slavery was contentious, just as patents were.

In either case it doesn't really matter what the founders thought as ideas should be tried on their merits, rather than who thought of them.

I think looking back at what the original law-makers intended is useful in that it removes the veneer of respectability that something 'enshrined in law' might otherwise have, when people more respectable and revered (authors of the constitution) are shown to have doubted and questioned their (patents) validity. Lastly it shows how far we've come in a (relatively) short time. From "very peculiar cases only, if at all" to inalienable, perpetual rights that monied interests have over ideas.

Things started to turn ugly once legislative bodies became more concerned by the letters of laws instead of the spirit of laws. The spirit is in most cases valid (e.g. you shall not kill), the wording on the other should be adopted in such a way that the spirit fits the situation (changed due to technological developments for example).

You're right. Whether or not the we should stick to what the founders wanted is irrelevant.

However that does not mean the founders' original intent for patents isn't a better interpretation, and that the modern interpretation isn't still a bastardization of that better interpretation.

You can't just say the founders were wrong on slavery. You have to say which were wrong. They had to make a compromise to get states to agree to the Constitution, which states perceived as threatening their rights more than the Articles of Confederation. They compromised with the understanding that the problem will be resolved later, and it ultimately was decided 70 years later in the bloodiest war in American history.

Another reasons is that Congress, observing that patents and inventions are correlated, has made very effort to encourage patents so as to cause more inventions.

Don't forget that most people in Congress are lawyers. And lawyers will see the patent system providing a lot of value... because you typically need lawyers to file for a patent.

It's not necessarily a case of "keeping the patent system ensures jobs for lawyers." It's probably more a case of, "if you have a hammer, everything looks like a nail."

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