Abstract Ideas Don’t Deserve Patents
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If patent filers chose to obfuscate their code, ideally their patent would be rejected for being unclear, or at least, they'd have a hard time defending their patent, as the difference between it and an alleged infringer would be quite large.
If you were to require that the patent code and the alleged patent-violating source code were defined functionally and represented the exact same function (prove f(x) = g(x)), that would cut down the space of potential patent violations, but patent holders would scream that such a limitation is unfair. There would still be plenty of silly patents that would be patentable, and the same problems would exist as with the existing system: if you read patents to see whether your code violates one of them, you're on the hook for more damages. In any case where exact behavior is not critical, someone might be able to get around patents simply by changing the mechanism/computation slightly. I'm thinking of things like mpeg patents, where encoding and decoding techniques are constantly being tweaked, improved, and getting new settings. Would allowing an additional input to a function f(a, b, c, ..., m), i.e. f(a, b, c, ..., m, n) render it immune to a patent that hardcodes n as "5" in the function?
Why do we need software patents in the first place?
What constitutes theft of creativity? Stealing Mickey Mouse is an extremely concerted act, you have to present a character that is intended to fool people into thinking it's Mickey.
But stealing innovation is much broader. Accompanying a software patent application with illustrative source code will not limit the scope of the patent to copying the code. It covers use of the method, not just the code.
If someone, for instance, applied for a patent by describing an electronic game in which a player controlled character collects tokens inside a maze while computer-controlled characters tried to capture him, and accompanied his application with a full working copy of Pac-Man, then the patent would protect him against clones as well as direct copies. The point is not protecting against copies, that's the job of copyright. The point is the clones.
Patent law is intended to safeguard innovation that one could say would not have happened otherwise.
As to why we need software patents, recent articles have described the legal situation better than I can in a HN comment. Basically there's no legal distinction that has been drawn yet between software patents and other types of patents, one needs to be properly described and that's the job of the Supreme Court. At one point they were banned because they were insufficiently distinguishable from mathematical formulas, which definitely are unpatentable.
Over the years, Congress decided that patents were getting too complex for the court system to properly adjudicate, so they created a separate court to hear patent cases. This court turned out to be friendly to big business and gradually opened the doors to software patents while the Supreme Court chose not to get involved.
For example, in spatial indexing you can implement some widely used algorithms as either traversing the obvious space decomposition tree or doing lookups using projections onto higher dimensionality space-filling curves. The former is "obvious" but all good implementations use the latter code design because it is much more scalable in real systems even though the algorithms are equivalent.
Most algorithm patents with code go for "matches the high-level description of the algorithm" rather than "is an optimal representation of the algorithm given current computer science". That said, in my experience people are pretty good at reconstructing an algorithm implementation from patent descriptions that do not include code, assuming they have some domain expertise (i.e. in the above example, it should not be necessary to explain the representational equivalency of literal space decomposition and projections onto space-filling curves).
Most (all?) patentable subject matters work this way; the abstract process is patentable and the reduction to a specific implementation is protected by copyright because they are unrelated bodies of work. It is not uncommon, for example, to license a chemical process (read: algorithm) patent from one company and license a copyrighted implementation design from another company. Computer algorithm patents work the same way.
This works very well in European Union, although this is an ongoing fight between lobbyists and civil rights defenders (such as FFII and EDRi).
(Note that there are lots of European software patents already filed, but those not legally enforcible right now.)
At that point of course it will also be much easier to limit all those overly broad claims.
Source code should not be patentable.
A world without software patents is a world of free and faster innovation, of equal opportunity, and of open and cheap access to technology.
Firms that have patentable knowledge are strong enough to not need governmental protection. Inventing something before others gives one technical advantage and time to make profit ahead of others.
Too much effort is spent on the patent process, that could be spent directly on innovation.
In today's software world, 20 years of monopoly is like 100 years of monopoly when the constitution was signed.
The solution should probably come from the legislative branch.
That single process is the difference between an acquirer taking all of their work and just re-implmenting, now that its clear what the issues are, and giving them nothing. And that company having to negotiate with the engineers about their work and pay them fairly for it if they want it.
Patents have not always existed, and it is useful to see what it was like when they didn't exist to understand what it is they protect.
That said, patent administration has not kept up with technology, although if you've been involved with the patent office as long as I have you will know it has gotten much better at figuring out what should and what should not be patentable. Further, the judiciary is getting much more in tune to the abusive nature that people wielding bad patents can have on an industry. It is getting better, and the people who need to make it better (the Supreme court in the US and the 'patent' court) are motivated to make it better and have been making changes along those lines. Not a quickly as some might like but being quick in complex areas of law is often dangerous so some caution is advised.
The story you describe is a convenient myth to justify a system that benefits established interests.
You don't have to believe some random guy commenting on Hackernews here, but you do have to actually think about it and test your assumptions.
To illustrate my point, consider my story. I'm a software developer with entrepreneurial ambition and I'm developing a product I have dreams of marketing and selling. Last week I probably came up with 5 methods of doing some novel data analysis that are patent-able.
How many will I patent? Well considering it would cost about 100-150k to adequately protect that intellectual property and I have only my own boots to my name, ... I'll patent zero of them.
Clearly the system does not work for me.
This is one extreme scenario, but consider the continuum. What about a startup with 500k in seed funding? Should they spend 50% of their capital to protect their intellectual property before they've finished a product and made sales?
Meanwhile large companies spend millions on patent programs which sweep up wide swaths of IP on nebulous grounds of validity. Not only can I not afford to prosecute a patent, I can't even afford to respond to a cease and desist letter based on an invalid patent which came out of the "innovation process" of MegaCorp.
Sorry, but the system is not for the little guy or the start up.
First, and perhaps most importantly, how did you arrive at a cost for filing a patent? I ask because there is a lot of mis-information out there spread mostly by patent attorneys that try to make this case. The actual fees for filing a patent are not all that high, however attorney fees are astronomical by comparison. Also did you know there are people who are registered patent agents (not attorneys) who can help you file a patent at a much lower cost? I guess the real question is how deeply have you investigated patents with available online resources before deciding they were not worth pursuing?
I've got just over a dozen patents issued to me, they range from the quite simple (protecting a laptop screen from onlookers using lcd glasses) to fairly complex (protecting executable code with bi-directional authentication). I've also been the advisor to a number of startups which have filed for and received patents. The most expensive cost was probably the bi-directional authentication one because it got the department of state involved (long story) but the first one was quite inexpensive, about $15K from deposition to issuance. Part of the expense can come from trying to patent something really broad (like "breathing air") which gets a lot of 'office actions' from the patent office for prior work and restatement of claims. That burns a lot of attorney hours and that is a lot of cost. For things that are narrowly claimed and there is little to no prior art in the patent database, they are very quick to patent and thus very cheap.
Now a patent attorney will advise you to "get as broad coverage as possible" to maximize the "value" of the patent. Which is good, but somewhat self serving advice. They will start with something really broad and the repeated office actions will pare it down into something much less broad, but arguably "as broad as possible." Also "as expensive as possible."
Not a lot of people who argue for or against the patent system have been through it, I've been through it as an inventor, an acquirer (due diligence), and expert witness (defender) of various patents. That experience has helped me get to the point where I've separated my opinions about patents and patent administration into two camps. The latter is problems with how they are vetted, prosecuted and defended, the former is about the concept of protecting the person who did the work from exploitation.
Given changes in the JOBS act there was some additions more cost effective ways to file patents that made it easier for folks in your position to file them. There are also systems like provisional patents, where you put down that you're going to file them in a durable way, so that if you go talk to BigCorp and tell them what you are doing, and they "steal" your idea and implement it, you can "steal it back" by asserting your patent rights to it.
I guess my point is that it is a lot more complex than "good" or "bad" and the information that is readily available may not always come from a disinterested source.
A few moments' thought should lead one to the realization that productive engineers have much more to lose from patents than they could ever stand to gain. Even the most creative among us consumes a thousand times more than we create.
Why does it cost more to for the patent office to find out if there is an existing parent than there is to get one granted? Explain that one!
In short, we are getting more or less a coin toss when it comes to patents being granted. And then the cost shifts to legal proceedings, and sadly the threat of these proceedings causes many innovative startups to settle BEFORE any trial. The trolls then cite their success in obtaining licensees as they go and intimidate more small victims in a legal racket.
> In short, we are getting more or less a coin toss
> when it comes to patents being granted. And then the
> cost shifts to legal proceedings, and sadly the threat
> of these proceedings causes many innovative startups to
> settle BEFORE any trial. The trolls then cite their
> success in obtaining licensees as they go and
> intimidate more small victims in a legal racket.
Part of the reason this is coming to a head now is because we're at the opening of the great unravelling. The dot com boom, and the software patent equivalent of the Cambrian explosion occurred starting in 1995. The 20 year anniversary of which, and the maximum lifetime of any post GATT patent[1], is 2015. We will be seeing upwards of 10,000 patents a month expiring and that is only going to get faster. This leads to desperation on the part of NPEs to get some value out of their patent portfolio before it goes poof. Unlike copyright there will be lots and lots and lots of things that not only can you use them for 'free' but they won't be biting you in the behind later.
[1] http://patentlyo.com/patent/2012/05/how-many-us-patents-are-...
[2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm
Edit (to answer biehl's comment): I meant abolish "software" patents.
(Edit: Then your statement still makes no sense. If you understand that he spoke only about software patents - why do you then needlessly broaden the subject?)
Edit2: It is worse-than-useless to demand no action for softwarepatents until all patent types have been analyzed. Do you also support stabbing people being legal until all uses of knives (in kitchens etc.) have been analyzed? Or do you see that we can reasonably outlaw some form of knife-use?
If you invent a teleporter, you should have patent protection. Developing a video game that implements player.teleport() (however cleverly) shouldn't be.
Software is rarely similar to math algorithms in practice. Just for example, majority of the software developers I have come across have little understanding of mathematics, fundamental computer science, and often also algorithms. They just know how to invoke the latter already built in various libraries to get the problem at hand solved.
Finally, "software" by itself is not a subject of a patent, it is a subject of copyright. What is patentable is an "invention" that may be implemented in software or as a process instead of something physical.
Example, regarding "player.teleport()", it is already that way.
In Software, patents are silly because everything is derivative, and it's very difficult to separate the obvious from the non-obvious. It's not as if most patents are coming from many years of research: Enough eyeballs often would have arrived at the same conclusion.
We'd also still build software without patents: It's just too useful not to keep working at it. Copyrights are more than enough.
So now let's look at a very controversial one where patents make all the difference: Soybean seeds. If I spend 15 years developing a seed that yields better, copyright will not help me. But the minute I sell a seed, you can make as many copies of it as you want. You don't even have to buy the first seed from me, since the seeds themselves are what the farmer sells. Therefore, investing in seed quality becomes something that is extremely hard to do in a for-profit organization, because you have to recoup your entire investment in the first year, as in the second one, anyone that has a field can be your competitor. Patents in the field are also rarely dependent on each other: Different genes can be stacked on a plant, but unless you developed the entire suite of them all at once, it's not as if it's likely someone is going to find a little refinement that they'd love to sell, but depends on a different party's patent to also be on the plant.
So in that field, no IP protection completely changes the game. Investment in soybean seed research becomes a purely government task, as it's impossible to get any ROI out of it.
Now, one can still be against life sciences patents, but it's easy to see how removal of said patents would lower the effort spent on research, while on software, if anything, it'd make it go up, as we'd stop being afraid of doing something that we find obvious, and that someone else found patentable.
So on each field, patents have different dynamics, and should be evaluated independently. I don't think you'll find many pro-software patent people that aren't just pro-patenting everything. And those really don't make any sense.
To play Devil's advocate for a moment...
Not long ago I was involved with the application process for a patent that was the result of a lot of original research by a small organisation, which was competing head-on with much larger and better funded organisations that hadn't come up with the same invention despite several years of competing in the same industry. One could certainly make a reasonable argument that the "enough eyeballs" theory does not apply in this case.
Do you think the patent in question should be allowed? Does it matter whether the patent in question involved software in any way? If so, does it matter in what way or to what extent? Do the nature of the overall invention or of any part of it that involves software matter in any other way?
A good canonical example of this is Apple's much maligned "bounce scroll" or slide-to-unlock patents (though Apple is hardly alone when it comes to this nonsense).
Any decent software developer could see either of those in action, having never read Apple's patent and never seen Apple's source code and whip up his or her own implementation in less than an hour. That alone should invalidate these patents.
Some will argue that Apple's original idea was unique at the time, so they should have a patent on those grounds, but that's not what patents are supposed to protect (though massive amounts of money being funneled into lobbying and the legal system have served to obscure this in the past couple of decades).
Patents don't exist to protect ideas, they are supposed to protect unique and novel implementations of inventions, not ideas. There's really not a true legal IP mechanism for the protection of ideas (even copyright is protection of expression, which is closer to ideas, but not quite the same).
This reasoning is deeply flawed. There is a tendency for something to seem "easy" or "obvious" after the fact, but this is ignoring all the insight, effort, and risk it took to find that initial successful path to the solution to begin with. Take a look at the Occulus Rift for example. Two years ago no one cared about VR. Today there are a handful of companies that claim to have a headset on par or better than the Rift. What changed? The Rift proved that it was viable, and now its relatively easy to follow their path to a successful product. Just because a solution is obvious after the fact, does not mean its creation was equally as obvious.
>Patents don't exist to protect ideas, they are supposed to protect unique and novel implementations of inventions, not ideas.
An apple lawyer could easily say that the "idea" here was unlocking of the phone, while the implementation/invention was the "slide to unlock" functionality. Neither is more right than the other.
Edit: would be an interesting experiment to have public downvotes
He carefully said "without ever reading the patent" to avoid your counter-argument.
Consider: Knowing we could get a man to the moon and back pre-1960s vs. knowing we could implement "bounce scroll" on a cellphone.
The latter example everyone who is a programmer "knew" prior to the iPhone even if they never actually considered it... because the implementation of it is so amazingly obvious. It is nothing but a good idea, and good ideas aren't supposed to be patentable. Which isn't to say they don't get patented, but that's a side-effect of how fucked up the patent system has become in the past 2 decades, not representative of what patents are supposed to be.
I agree; not really relevant to the argument though.
Note that I am not arguing in favor of bouncy scroll patents.
I don't think any software patents should be granted, but the biggest problem with them in practice is how they are allowed to be written: "a system that does thing X" now is a patent on anything that does thing X, essentially a patent on that idea. Software patents often give the illusion of specificity, but if you look at e.g. the "Siri patent", you see that it really just says it searches multiple databases and displays them in an order based on some heuristic. They're written in a way that it could arguably cover a huge class of inventions, again, essentially patenting an idea, not an invention. This can be especially bad when it gets in front of a jury, as it seems all too reasonable to them that that description does in fact match the competing product in question. Just look at Newegg vs a patent on "A method for transmitting data comprising a sequence of blocks in encrypted form": http://arstechnica.com/tech-policy/2013/11/jury-newegg-infri...
You're missing the point. The issue wasn't that VR now has a viable market (it always did), the issue was that a good implementation was now viable. And its not just that it can be implemented, its that we generally know how they did it. From this perspective, after having seen a fully working prototype, it can seem obvious that VR technology was just on the horizon. My point is this is a fallacy; its easy to say climbing mt. everest is possible when you can look down and see the path someone else just treaded before you. In a similar vein, judging something as "obvious" and thus not patentable after it has been invented is flawed.
Simple things should not be ineligble for patents, and what you are proposing is excluding from patent protection anything that is simple. Also if you're looking at a patent that is in a field that you're skilled in and you can't understand it "ok, it's right in front of my eyes, but what is this magic?" then the patent hasn't fully disclosed the invention and it shouldn't have been granted (or you're just not skilled enough, many patents require vast amounts of knowledge to be able to understand and the "person skilled in the art" may be a team of people).
To take a silly example, let's say I propose a patent on the process of painting a house green. That's the entire text of the patent. Should it be granted? No. In part because I haven't fully disclosed the invention. But what could I possibly add? "Step 1. Cover house with green paint."
A government granted monopoly is a big gun. Far too big if the goal is just to provide you with revenue. Government works for the people, not one company, and if we're going to give you the right to exclusively profit from something, we demand to get something in return. The thing we demand is knowledge. We want to know how you did it so that after your monopoly expires, everyone can benefit from the increase in knowledge. If your "invention" is so simple that we all already know how to do it, then we don't need the "full disclosure" of a patent, and we don't need to buy your description of painting the house green for the enormous cost of having to pay you exhorbitant fees for every green house for the next two decades.
Secondly, you have accurately described the patent system;
> if we're going to give you the right to exclusively profit from something, we demand to get something in return. The thing we demand is knowledge. We want to know how you did it so that after your monopoly expires, everyone can benefit from the increase in knowledge.
But you go off the rails when you confuse simple and known. The point of a patent is to disclose the invention in a clear enough way for someone else to be ablwe to perform it. Once you know the answer, it probably will seem simple. But that does not mean it's not inventive (ie, no one else has done it before, and you qwere the first to have made that knowledge available to the public).
You aren't eligible for a patent just because you did something first.
You might like that to be the case but most of the canonical examples of things that should be patented are just that sort of thing. For example various patents have been granted for paper clips[0]. If it still isn't obvious how it is done after people see it you could argue that the patent isn't necessary - trade secret would do.
>> Could I reproduce this patented system without ever reading the patent just by looking at the results of it
> This reasoning is deeply flawed. There is a tendency for something to seem "easy" or "obvious" after the fact, but this is ignoring all the insight, effort, and risk it took to find that initial successful path to the solution to begin with. Take a look at the Occulus Rift for example.
You're right, you didn't explicitly say that Oculus Rift is an example for a system that could be patented because it is more complex than it seems. But if I had wanted to make the point that I believe it is patentable I could have phrased my argument in the same way as you did to imply it implicitly.
> Why are people incapable of comprehending an argument as presented, rather than attempting to make connections that do not exist in the text?
Because communication is always context dependent. It's easiest to see in the extreme ends, for example math, where you invent an entire sublanguage / dsl for precise communication and still your definitions change with the context you are working in: Does a ring contain a multiplicative identity element? Which operations is the homomorphism homomorphic in? We leave out these details, because most of the time it helps communication because everyone is on the same page as you anyway and those extra bits and pieces distract from the core argument. Then there is stuff that the reader is faster to figure out for him- or herself than reading "the proposition is true for the base case n=0 of the induction as (3-0)^2-9=0" or sometimes even faster than "the base case is obvious"
And as far as your Oculus example goes... actually lots of people cared a great deal about VR back in the 80s and 90s. VR was a huge deal back then, it just kinda sucked.
The brilliance of Oculus/Palmer Luckey (which I don't mean to diminish in any way via this post) is recognizing that fundamental technologies (mostly in the form of advancements made for the smartphone market -- which Oculus didn't create themselves) had finally caught up to the point where convincing VR was possible. But the idea of strapping some head-mounted displays onto a system with various gyroscopes and such is very old and the early systems for it looked quite a bit like the Rift at a high level, they just performed much shittier because the fundamental technology wasn't ready yet.
This is similar to tablets where various players like Microsoft and Apple themselves put a lot of effort into them a decade before the iPad came around.
Now that Occulus has proven VR ready for prime time, everyone claims they have a competing headset on par or better than the Rift. Some would use this as evidence that VR tech is "obvious" (again this is simply an analogy, nitpicking on the particulars is the wrong way to address this argument). My point is that this is not evidence for obviousness when your vantage point is after it has been shown it can be done. In fact it will only bias your judgment.
The trade is: we give you a monopoly on the thing, you give us (the public) written step-by-step instructions on how to create that thing.
If instructions aren't necessary to create it — i.e. I can figure it out from just seeing it — then the deal is broken, and isn't serving public good any more.
They're getting their monopoly, what did we get? Zilch.
This is the problem with patent protection in our industry. We can recreate things pretty easily. In say, biotech, it's much harder to figure out.
I'm still behind just scrapping patents altogether though. It's adding process for process' sake. The same feeling you get when you have big section of unnecessary code, and ripping it out has a no effect on the result — patents feel like that chunk of code, before you rip it out. They seem like another area where people have created work for themselves effectively doing or creating nothing. If we got rid of them, not a lot would change, but millions of people would instantly have less weight on their brain.
We get to buy a product that we otherwise may not have been able to. The original purpose of patents is debatable (just read this thread), but one cannot reasonably argue against the current understanding of their purpose, which is to encourage invention. Patents on (some) "obvious-after-the-fact" things encourage invention. Why bother to put in time and effort to invent something when BigCo. will simply roll out their own before you can even bring it to market?
Now I'm not saying all obvious-after-the-fact inventions should be patented, my original argument was against using obvious-after-the-fact as an exclusionary test. One should attempt to judge obviousness before it was proven to be viable using the given method, as an after-the-fact judgement is inherently biased.
Is this retroactive, i.e., all software patents filed and granted in the past too are abolished?
If 'no', this can bring disadvantage to new comers who cannot file any new patents against those who have already have then granted.
If 'yes', what happens to all the money companies have already spent on the patents they currently have? (International filings in many different countries can set a company back by several hundred thousands of dollars.)
I am open to considering favoring abolishing patents (see also the alternative discussion on why only for software) provided it is applied uniformly to the past as well as the future without disadvantaging new comers.
I do agree that on the very least, the term of the patent should be dependent on the degree of innovation involved whether in terms of time (number of years of validity) or money (maximum amount of gain in proportion to the R&D expenditure). People on HN have generally opposed this thought due to the overheads involved, etc.
It seems like the holder of a software patent would really have to have something to get it to stick in such an environment. Because of that potentiality it doesn't seem like an all or nothing proposition to me.
It seems to me the way to do it is to establish that software alone (or software in combination with a prior art computer) cannot infringe any patent.
> If 'yes', what happens to all the money companies have already spent on the patents they currently have?
The assumption is that abolishing software patents will have a net positive result. Practicing entities thereby have more to gain by avoiding the future costs of zero sum patent prosecution, licensing negotiations and patent litigation than they have to lose in sunk patent prosecution costs.
The hardest hit would of course be patent trolls with no other line of business, whose dissolution into bankruptcy can only be celebrated. Your concern is like being concerned for the costs incurred by kidnappers in purchasing unmarked vans and securing abandoned warehouses when the day comes that we abolish kidnapping.
We are currently granting 20 year patents. Next year we grant 19-year patents, etc, etc. Past (and current) investors can capitalize on their 'investments', and the USPO and related services (attorneys) have a chance to scale down gradually.
Over time there would be diminishing returns on filing a patent, and players entering the world of software patents are faced with exactly the same world that they now face, except over time things look better.
Also included in the patent is the concept of paying humans to use the system to do searches for you (i.e., email a photo of shoes you like, someone will google it for you).
http://www.google.com/patents/US20130166591
If a patent is granted in spite of being obviously derivative to the point that the inventor refuses to sign it, something is broken.
The granting of your patent doesn't mean you'd be able to successfully sue someone for paid searches, however you would have stronger grounds if they were executing paid searches on a fashion search engine with a character builder interface.
IP's time (if there ever was one) is over. There is no benefit for real inventors and artists anymore, merely for mega corporations to use the levers of government to maximize their profits at the expense of humanity and freedom. Nothing "intellectual" should be property.
I'm not against corporations or even mega corporations. I think they'd do better for themselves (and their users, more importantly) if they didn't waste years and $billions battling each other and bullying startups and individuals over IP. Instead, they should just focus of making better things.
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. - Thomas Jefferson
> IP's time (if there ever was one) is over. There is no benefit for real inventors and artists anymore, merely for mega corporations to use the levers of government to maximize their profits at the expense of humanity and freedom. Nothing "intellectual" should be property.
> I'm not against corporations or even mega corporations. I think they'd do better for themselves (and their users, more importantly) if they didn't waste years and $billions battling each other and bullying startups and individuals over IP. Instead, they should just focus of making better things.
> [Quotation]
This sounds like a noble rallying cry but is ultimately misguided. How does this system reconcile with the incentive structures inherent in pharmaceutical research and drug design?
Pharma "development" might be done by academics who get bought out by big pharma after their discovery, or it might be done originally by big pharma. Should pharma IP be protected so they can inflate prices to pad the bank accounts of the inventors even though they were operating in academia at the time of invention?
Pharma costs involve (a) cost to discover a drug, (b) cost to do drug trials, including all bureaucratic red tape in getting the drug approved, and (c) advertising and marketing (both to prospective patients and to the medical establishment). From what I've read, advertising costs exceed R&D. Surely, IP monopoly pricing should not be able to pass along arbitrary marketing costs.
Some drugs are prescribed for serious health problems, some drugs are prescribed and taken on a more voluntary basis, and there's a gray area in between. Should IP owners be able to set arbitrary profit margins for drugs for more serious health problems? Who decides what's serious?
The incentives for much of the pharma industry are all wrong: they market to doctors and potential end-users, even though end users are rarely capable of evaluating drugs, and even though doctors are influenced by marketing directed at them. This isn't so much a cost issue (other than advertising costs, above) but rather a public health issue. Some drugs might not be in the public's interest at all, even while being recommended by doctors, and paid for at inflated prices by patients and insurance companies.
There are so many complications, I'm in favor of dealing with pharma IP separately.
The pharma companies would lose the ability to patent a drug.. which means they would keep it a tradesecret instead. So generic may or may not be able to be produced.
Second: without trademarks, pharma companies could invent Prilosec... and I (and anyone else) could sell a sugar pill named Prilosec. Or rat poison named Prilosec.. or any number of other items named Prilosec.
This is not a result that is in anyones favor.
Furthermore, I would consider tradesecrets a form of IP so, if we are considering a scenario in which IP were abolished, tradesecrets would be abolished too in the sense that they would be afforded no legal protections. True, a formula or process could still be kept secret, but without protection for that secrecy it seems unlikely that real innovations would remain secret for long and market competition would increase as a result.
The cost is in the red tape, and doing the clinical trials to satisfy regulations. I agree, we'd have to get rid of that.
But treating it as a special case ensures that we'll just put off the subject indefinitely.
IP corrupts everything it touches. Get rid of it, and we'll eliminate the problem at the source.
It's better to deal with the harsh reality of peaceful commerce than it is to continually mold an economy with abysmal, suppressive, artificial constraints. Such laws are overwhelmingly wielded by large corporations: groups of protected people who afford patent war chests, suck up the relatively small patents "of the little guy," who gladly suffer constraints, and whose dominion grows parasitically with every law they bend in their direction.
The answer for "incentivizing" progress has no clear path. But I know it should lie elsewhere from this current one, if we're to ever set our courses ethically. It must consist of peace. Peace means not using violence and not caging people just to mold corporate will. Incentives exist on one side. Many people are naturally driven to learn, research, create, and discover.
On the other side, that doesn't solve the economic drivers that act as a backbone. Obviously, that's where your question is focused. Given less control by corporations, I imagine time-to-market, mover advantage, and trade recognition would still be enough to create a very fertile economy. It would hardly lack in the catalysts that dive manufacturing and profit-based prospects and motives. I'd argue that it would increase those conditions beyond just the net-health increase of market access. The major difference would be an economy that becomes more decentralized with fewer mega-corporations and more p2p trade. The pace of drug design would not necessarily slow. Motives and rewards behind drug design would nevertheless change and certain aspects of that would slow.
I'm more sympathetic to trademark IP. Trademarks were a helpful stopgap against fraud in the evolution of the US economy. Yet, trademarks as we know them today could be logically disbanded in the future if the means which which to prove identities and dates of creation become more solidified into everyday life. Certain aspects of enforcement would probably linger on for consumer protection (e.g. selling exact, branded replicas of a product would be prohibited in areas where true confusion is likely to occur). I believe most people want to reward people and businesses who take chances, act transparently, and serve quality products and services, the more that information becomes readily flowing. Likewise, I believe most people want to disfavor the people who act fraudulently (presenting the works of others as their own).
Ultimately, I'd rather society cope with the human potential that occurs without the limitations of patents, rather than society coping with the human potential that occurs with the limitations of patents. This philosophy may or may not lead to more net gains superficially. However, I think it leads to more gains rationally and ethically.
> Ultimately, I'd rather society cope with the human potential that occurs without the limitations of patents, rather than society coping with the human potential that occurs with the limitations of patents.
The use of patents in pharmaceutical research enhances human potential. Perhaps that is not the case in other industries, but that was not what I was talking about.
The pharmaceutical patent system creates an incentive structure such that companies see it as rational to invest billions of dollars over the course of a decade or more, with the expectation that they will enjoy a period of time after completion (funding, research, approval, manufacturing) where they can enjoy a return on their investment.
Without patent protection, when the research comes to fruition- all manufacturers can produce the drug at essentially zero cost (the actual industrial/manufacturing aspect of cost is a trivial fraction of total cost). Since the barriers to entry are so low, the product can be commoditized and the researcher's profit will be cannibalized.
> Given less control by corporations, I imagine time-to-market, mover advantage, and trade recognition would still be enough to create a very fertile economy.
This market is enabled by patent protection, not hindered by it. Without patent protection the pharmaceutical industry would be left with a free rider problem of disastrous proportions, risk aversion would sky rocket, and research will drift towards a race to the towards the bottom.
There is a more insidious consequence as well. No patent protection will decrease humanity's net scientific knowledge. Or at least massively retard its growth.
Without patents, companies are forced to rely on trade secrets. Secret formulas. Proprietary lock downs into perpetuity. There are no expiration dates on trade secrets. There is no scientific knowledge to be built on a foundation of trade secrets. This is almost like a bizzaro version of the software patent world-- where patents increase human knowledge, or at least put a down payment on it (relative to the alternative).
> This market is enabled by patent protection, not hindered by it. ...
We disagree. I and many others do not support patents nor business-as-usual. It's pretty simple. I don't wake up in the morning and think about how I can continue to best serve the enrichment of particular pharmaceutical companies.
What's insidious is clear. The insidious component to me in this whole equation is the one where people are led into a rather unquestioning belief that human potential -- be it in medical science and wherever -- would not exist or progress if it weren't for a framework that allows temporary market dominion of capital (and the monopolies that arise from this). It's nonsense. You've stated broad sweeping claims though. These claims very much do beg questions -- far more, to me, than any questions that result out of society having to cope in the absence of (punitive, violent) market constraints. My own presumption is in believing that, while answers that bridge a transition aren't definitive, at least the path should strive toward an ethical horizon. Personally, to me, a republic that uses collective force to inhibit [people from researching, selling, and building upon concepts and therapies] -- a society with patents -- is a shining example of insidious, unethical, corrupt behavior. The SCOTUS had a tiny bit of sense to revoke some of the patents on genes, at least, if we're to talk baby steps.
I responded to another comment in a little more detail:
https://news.ycombinator.com/item?id=7498742
Maybe you'd like to take a look.
I'm not trying to make a statist or anti-statist argument (apologies if I am putting ideologies in your mouth.)
My entire point is that this is the best system that we have, given all the other alternatives. Experimental validation is incredibly expensive, and it really boils down to whether or not you think that private companies will risk billions of dollars in time and opportunity cost when other parties can rationally choose to "strike last" or "invest last." It's more of a game theory argument than a political one.
It's certainly possible that there are solutions to this that don't involve patents. We just haven't thought of one yet. Patents have all kinds of other undesirable baggage that people want to get rid of. If we come up with a better system, then we'll do it.
In order for our drug discovery process to continue if we abolish patents tomorrow, the following has to be true:
Pharmaceutical companies will still find it rational to stake money on clinical trials that may or may not yield the results necessary to ethically bring the drug to market. And they must still find it rational to do this while knowing that another rational company can just wait to hear the results of the clinical trial and just sell the drug effectively for free.
If you disagree with that paragraph, and more specifically, with what I said in the comment I linked, I would like to hear what you have to say.
I am open minded and I'm a little bit hurt that you are casting me off as having an unquestioning belief in any system, let alone one that I think is just barely good enough given the alternatives.
Elaborated in full here: https://news.ycombinator.com/item?id=7499328
> Pharmaceutical companies will still find it rational to stake money on clinical trials that may or may not yield the results necessary to ethically bring the drug to market. And they must still find it rational to do this while knowing that another rational company can just wait to hear the results of the clinical trial and just sell the drug effectively for free.
My position starts with peace. It sounds cliche. But peace as a groundwork for a more natural market doesn't need to worry or concern itself over whether PharmaABC Co. will pull in however many more $x billions beyond its $y billion in marketing/propaganda costs (resulting from the comparative ease they had in securing monopoly rights by buying and submitting new patents). What peace and a more natural market must concern itself with is protecting people and entities from other people and entities who attempt to wage involuntary relationships (e.g. mafia, gangs, businesses, government itself: especially institutions with three-letter acronyms). Under more peace and peaceful government, that which will follow may follow.
I agree with your paragraph's statements.
Pharmaceuticals would not go away. Yet still there would be vast amounts of money to be made. The distribution of that money would be more grounded though. Less corporate control would be a huge boom to scientific exploration. This holds true for any industry that becomes more accessible to people: hardware, computing, food. The upsides are always rational and ethically superior to their alternatives. 3D printing my own parts or brewing my own coffee will hurt the bottom line of certain interests. However, it will only expand the bottom lines of more people who can come to the table as a result of the mere ability to now enter a market. They matter too. Meanwhile, cafes of the world open their doors, even as Starbucks takes over block after block. Different wants create peacefully coexisting supplies.
If you want to understand my view, allow me to use this example. Pretend coffee is new. Pretend Starbucks doesn't exist. Pretend coffee plants came as a result of research, ideas, or derivations of nature. A world with patents in general is -- to me -- akin to a world where Starbucks could patent coffee. Or perhaps a capital group buys those patents to start a Starbucks and license them to only big players who have the capital. Society is at the mercy of Starbucks or the whims of a few. Starbucks can then (legally) prevent other people and businesses from growing, selling, and distributing coffee. Don't like their particular flavor? Don't like their company? Don't like the way they do business and source their goods? Tough luck. If it wasn't enough to build an empire on a service and product alone, they can now at least build an empire off of corporatism. Oh, and they'll continue to call the shots for another 6-20 years. And for what? Really, for what? So that they can amass themselves on the backs of a society's military/police/prison network (i.e. the institutions that ultimately back their corporate law)? So that they can prey upon high demand, as a taste for coffee quickly develops, without having to answer to the grounding forces of the absence of monopoly status? So that they will take the initial "risk" of being first to market? Any minor positives become unseen to the ignorance and imbalance this breeds. Consider that my vision of a living 'coffee nightmare.' :)
Just because something would no longer be patentable doesn't mean the constructs of society wouldn't form to support people and businesses discovering medical breakthroughs (or coffee). I mentioned earlier that I believe a society as this is even today -- of mostly 'good' people -- would mostly love and want to reward the ones who bear good and honest fruit for society. I also believe this path would have cyclical effects. It's that echo chamber again: learning that there are ways to conduct business without the luxury of dominance. There are many arguments to be made that over time this itself would increase the flow of commerce between people and also increase the re-flow of capital into more avenues of development and research. Granted, my words are also predicated on people having increased access to information about the entities with which they engage.
It's smart of you to be cautious.
It's wise of you to be concerned, not wanting to potentially rip the carpet out from under people who rely on potential drugs for peculiar and rare diseases. It's understandable to have notions deeply rooted in us through surroundings, such as fearing that a world without patents (what I like to call a more natural world) might mean a world where certain companies have no inclination to conduct science if they fear not obtaining their pot of gold. I respect and share your concern. But I'm also here to suggest that there's more to life than this. There's more to life than supporting something fundamentally corrupt that stems from fear. If other markets are any indication, and I believe they are, then for every company that would give up over no longer being able to claim patents -- that for every one of those types -- there are many more people and businesses on the sidelines who are eager to jump at the chance to fill voids and then some.
Yes, this would be with explicit understanding that it would probably result in less money for them and that the only dominance they achieve is inescapably up to them -- and up to a society that, under these freer conditions, I believe, would begin to become more prone to recognizing the efforts of those who take those risks (both recognition in fame and monetarily). You might consider this possibility. You might consider that nothing in life: no thought, no object, no idea, no system of logic, was born into this world yearning to be backed by violence. Only (some) individuals who 'birth' ideas call for backing them through violence. Do we want to enrich this mindset or stand for something better? The greatest tangibles and intangibles in life always seem to be born out of humanity's compulsion for logic and creativity. Ideas yearn to be free. The stuff we see around us is predominantly in spite of patents, not as a result of patents. But that's my opinion. Exciting times would be ahead for any area of science where people have increased access and needn't fear lawsuits and company death from patent holders. Unfortunately, those areas are few and unpredictable. The depth to which patents have sunk means one must have a great deal of legal backing (money) merely to venture a foot into an ocean of exploration. You might consider this. That's all I ask.
I spoke of the problems that abolishing pharmaceutical IP would cause in fundamental scientific research in my other comments on the thread.
I could speak to the specific problems it would cause with respect to '[much better medicine] and '[medical treatments without ip], but I think those concepts are second order to the scientific research retardation problem.
Please see my other two comments in the thread and let me know what you think:
Reason I ask is not to ad-hominem you, just to see which arguments I should focus on.
Here are the basics though:
1. Compound discovery happens mostly in academic research labs prior to patenting. This is published in journals (paid, but "open source").
2. Wrt general scientific research, science has always been fine without patents: Einstein, Feynman and Co don't need financial incentive to do their best work, it's just what they do.
3. The role of pharmaceutical companies is fairly limited to clinical research, getting over regulatory hurdles and marketing. In a given year approx 100k potentially useful compounds will be discovered, but only a couple are approved by the FDA.
Let me know what you'd like to argue about..
> 3. The role of pharmaceutical companies is fairly limited to clinical research, getting over regulatory hurdles and marketing. In a given year approx 100k potentially useful compounds will be discovered, but only a couple are approved by the FDA.
This glosses over almost the entire drug discovery process, which is a crucially important and nuanced process that yields new fundamental science. The positive scientific externalities of clinical trials are unambiguously a good thing.
You are correct that much compound discovery happens in academic settings (though it does happen commercially as well.)
Discovering the basic compound chemistry is just the first step. It must pass through a series of critical scientific assessments to see if the compound yields statistically significant desired biological effects.
https://en.wikipedia.org/wiki/Phases_of_clinical_research
This process is the experimental phase of drug discovery. It involves hundreds to thousands of different researchers, participants, institutions, and explicit organizational dynamics. The cost must be borne and there must be incentive to bear the cost. My entire argument is that the patent system enables this incentive structure.
> Wrt general scientific research, science has always been fine without patents: Einstein, Feynman and Co don't need financial incentive to do their best work, it's just what they do.
This point speaks to a more abstract point that is useful to consider, not only in the pharmaceutical context, but in the context of what makes science: science.
You are correct that fundamental theoretical science has always been fine without patents. The men and women who output some of our species' most beautiful interpretations of nature are rarely motivated by money. (I feel like that aspect of your argument was a bit of a non sequitur, I think all scientists are motivated by intrinsic knowledge, not money. I'm uncomfortable with my perception that you were implying that pharmaceutical scientists are somehow distinct from the examples you provided. Apologies if I misunderstood.)
The distinction between the pharmaceutical industry and the fundamental work of Enstein, Feynman et al. is that the drug discovery process involves two major expressions of scientific thought: theoretical and experimental. In this case, the basic compound discovery would be an expression of theoretical science (and experimental work), which must in turn be validated by more experimental science: the clinical trial phases.
In your example, it is true that Einstein, Feynman et al. did not need financial incentive to make immeasurable contributions to collective Good. They were doing priceless theoretical work, for what they are primarily known for. But (un)/fortunately, we need to do experimental science as well. Sadly, this cannot be done for free.
To continue with the physics analogy, The Higgs boson was theorized "without financial incentive" prior to its experimental validation. Of course, the experimental validation cost billions of dollars and the output of one of the greatest feats of human engineering: the Large Hadron Collider.
In this case, it was incredibly "expensive" (arguably, cost should be no object) to do this experimental validation. The cost was borne by government funding, ostensibly to increase the sum total of Knowledge.
Of course, resources are limited. The government cannot fund all basic research. We have aligned market machinery to incentivize pharmaceutical companies to fund the incredibly "expensive" cost of drug discovery experimental validation. For better or worse.
---------------------------
The premises to my argument:
- experimental validation (the lion's share of the drug discovery process) is necessary
- this process is expensive in terms of financial burden and opportunity cost
- despite our intrinsic desire to do all research, we must allocate our resources accordingly
- market actors in a (mostly) free market seek to maximize their utility
- a market actor (in a market with no property rights) presented with the choice of:
(a) spend X-Large sum -> manufacture + sell drug
or
(b) wait until other market actor spends X-Large sum -> manufacture + sell drug (at essentially zero input cost)
... can rationally wait to choose (b).
My argument:
- The pharmaceutical patent system provides the economic machinery necessary to incentivize private corporations to fund drug discovery experimental validation.
The point of mutual confusion or "the basics" as you put it:
The drug discovery process doesn't yield any meaningful scientific output, and is essentially an exercise in regulatory avoidance and marketing.
I disagree with "the basics" that you laid out.
I do want to say something explicitly: you've been very respectful and considerate and I really appreciate that. That's an increasingly rare thing on Hacker News.
http://levine.sscnet.ucla.edu/general/intellectual/againstfi...
I just came across it, and it makes a pretty damning indictment of my premise that patent incentives enable advancement in experimental science in the pharmaceutical industry. To be clear, pharmaceutical companies do play a crucial role in the drug discovery process, clinical trials do provide positive scientific externalities, but my assumption that patent protection is a necessary catalyst for risk taking appears to be incorrect (if you take seriously the very compelling case the authors make in the linked book chapters.) My argument is flawed. Elaborated in full here:
https://news.ycombinator.com/item?id=7499328
I still kind of like my part in this comment about distinguishing experimental science and theoretical science. Otherwise, I'm walking home with my tail between my legs.
> I do want to say something explicitly: you've been very respectful and considerate and I really appreciate that. That's an increasingly rare thing on Hacker News.
I hope that would've been expected :)
I think you make very valid points regarding the potential organizational benefits of IP for large scale endeavors. Actually one of the core arguments I make against my own anti-IP position is whether a large-scale hollywood production would be possible without copyright.
I.e. Much like Mozart or Beethoven who produced wonderful music without IP protection, I'm fairly sure a Spielberg or Scorsese would push the boundaries of their art whether or not they could earn hundreds of millions (but as long as they'd get enough to live and prosper). Same could be said of the great actors and musicians.
The best scientists & engineers are no different than the best artists or athletes. They do what they do, because this is what they are interested in.
I even think this is true for the greatest startup founders. Though they end up quite wealthy, I doubt this is what wakes them up, and what they dream about.
Certainly it would be true of pharmaceutical scientists as well.
The real question (which is analogous to what you brought up) is whether there would be sufficient resources to pay the required staff, marketers, and other non-creatives to put the greatest films together.
I don't know, frankly. I suspect at the high end, it would happen. My hunch is that the vast majority of money due only to IP goes to lawyers and operational business executives, not the creative geniuses.
I also suspect that without these massive giant corporations, and the onerous FDA regulations, we'd have hundreds of smaller, more innovative firms. Yes there would be more risk, but I think overall outcomes would be better because orders of magnitude more solutions would be brought to the marketplace and the best would rise to the top.
But I'd oppose IP regardless. My fundamental opposition to IP is not practical, but ideological. I just can't square it with the absolute freedom of speech that I believe in (and believe is more important than anything else). I do simultaneously believe that greater freedom bodes well for prosperity, but that's not why I support greater freedom.
I'm kind of tired, you'll probably be able to poke more than a few holes in what I wrote .. if so, I'll answer tomorrow. Cheers.
I don't think most people would agree with such a radical change.
Edit: even saas would be a problem.. Since a competitor to Amazon aws could call themselves amazonsaws.com, and use amazons logo etc (for ex)
When Pfizer sells a product to a distributor, said distributor would require Pfizer to send a tiny transaction to their address.
Known Pfizer address associated with product -> Distributor's address
As part of the purchase process, the retail shop would in turn require the distributor to send a transaction from said address to their address so that they can in turn prove authenticity to their customers and so on. A valid transaction should spend the full amount of the seller's address (e.g. 1 satoshi) so that there is only one possible path from Pfizer's address to the final owner of the product.
Known Pfizer address associated with product -> Distributor's address -> Retailer's address
One possible issue with this scheme is that it would still allow an hypothetical scammer to produce a valid transaction (assuming they previously bought the authentic product) and sell a fake product. However, there would be little economic incentive to do so given that their authentic product would now be valued as a fake (since they would have "lost" the ability to prove its authenticity).
Essentially, it would let a scammer buy an authentic product for the price of a fake. Not bad, but it doesn't scale well unless your goal is to acquire a bunch of authentic products for personal use with no intention of reselling. In other words, individual sellers (e.g. on Craigslist) might do it but it wouldn't be practical at a business level.
PS: I think I might just have described "colored coins" in a convoluted way.
Sure, the anti-slavery faction of the Republican party were called the "Radical Republicans" for a reason. I'm perfectly OK being the only person on earth that believes something.
Don't take refuge in the false security of consensus.
As another commenter mentioned, if you want to prove you are the producer of a good/service, you can find invent some way to do that, but it's on you.
Or some startup could invent a verification method and sell it (as a service) ..
The most important part about patents to remember why they exist.
Why would congress grant a legal monopoly to anybody? The reason is (or should be) to protect any investment that went into the invention; for the benefit of society as a whole - to make sure expensive research is still going to happen.
An idea does not cost anything. It might have some value if nobody had that idea before, but the idea would have been had anyway regardless of any legal protection. It might suck for the individual having the idea, but society is not served by protecting ideas that came without cost.
Copyright on the other hand is useful and needed, it protects a specific expression of an idea.
If you translated software patents to books, a patent would be like a legal monopoly on "science fiction stories", or "crime stories". Whereas copyright protects a specific store - as it should. Other folks are free to write other science fiction or crime stories.
Anyway... I am not holding my breath. Also there are so many patents already out there, these will likely not be invalidated retroactively.
That's it.
Do you think that pharma companies should have to provide working versions of their drugs along with their applications? They usually do not have a fully working implementation at the time of application, and won't have anything they can prove works for many years after the necessary regulatory testing is finished. The same for huge mining equipment, it might take years to actually manufacture something that works, but the invention exists once it has been invented, not produced. Why should software be any different? We've grown used to a world where many people freely share their software, but that is their choice, not a moral obligation, just like any field of science.
Lastly, one thing that really irks me about the software patents debate is the constant dissing of patents because the idea is obvious. Of course it's obvious once you know the solution, but that's ex post facto analysis. Invention comes from discovering the solution, not from the complexity of the solution itself. I personally feel that things like the slide to unlock patent are more deserving of an innovation patent than a full patent, so there are definitely cases where things have gone wrong. But I do not believe the majority of cases fall into this category.
This is critical. Not just to enable expensive investment, but to create an incentive structure that encourages scientific research that remains in the public domain. This is a critical point that people often miss in these arguments.
In computerland, we don't come up with new computer science every time we program an application. In pharmaceutical land, you literally have to come up with new science to make a new drug.
Let's not forget that, as software developers, our perspective and opinions on patents are not fungible across all domains.
The patent system in the pharmaceutical industry enables a healthy drug research and design market with proper incentive structures. Abolishing patents in the pharmaceutical industry would retard research, skew incentives, and encourage trade secrets.
A patent free system would most likely result in a system of trade secrecy. Companies would not share their results, they would keep the secret formula to themselves. It would result in perpetual proprietary lockdowns.
After all, why make public the concept that you just spent billions of dollars and years of opportunity cost on? So that competitors can manufacture the drug at essentially zero cost? Nah, we'll just keep that to ourselves, thank you very much.
Trade secrets are a threat to science.
You cannot build a foundation of science on a platform eaten away by trade secrecy. Trade secrecy will deprive humanity of the positive externalities of a significant chunk of pharmaceutical research.
As developers, we see patents as a threat. A sharp implement of the greedy. In the pharmaceutical world, patents are a necessary rung in the ladder of human advancement. Yes, it doesn't always feel good to climb this ladder (consumer drug prices) but without it- there would just be a scrum of companies scrambling to climb up the research pole, each trampling each other's investment returns (incentive) to zero. They'd get bruised and go find easier poles to climb up.
Yes, the patent system in the pharmaceutical industry has flaws. But it is the best thing we have given the alternatives.
If you are interested, please see see my other comment: https://news.ycombinator.com/item?id=7497872
----------------------------------------------------------
Here is probably a better version of my argument:
https://news.ycombinator.com/item?id=7498742
Essentially, pharmaceutical clinical trials yield experimental results (new science), they are expensive (need incentive to take the risk), and any system that prevents execution of, or obfuscates the results of, the clinical trial phase is a threat to science. Maybe there is a better system than the patent system but it's the best system we have right now, given the alternatives. It could certainly be improved, maybe even replaced, but abolishing it wholesale is not a good idea.
http://levine.sscnet.ucla.edu/general/intellectual/againstfi...
Make a pretty damning indictment of my argument.
Although I never really liked the patent system, I believed that it was ultimately "the best system given the alternatives" because I believed that in the absence of patent protection, pharmaceutical output would be reduced from lack of incentive. Historically, this has not been the case.
Although the authors do agree that abolishing the system in one fell swoop would be a bad idea because it would be politically untenable, prevent the reformation of certain institutions e.g. The FDA, and adversely affect medical researchers and pharmaceutical companies. They instead propose a phased reformation process which includes but is not limited to reducing the costs of phase II and phase III clinical trials (via NIH support / reformation), deregulating patent enforcement and instead affect private contract machinery, and ultimately phase out patents entirely.
My argument largely rested on my assumption that pharmaceutical companies were spending their money in a socially optimal way and that pharmaceutical output would be reduced in the absence of trade protectionism. It seems that empirically, the pharmaceutical industry is not an exception to the "trade protectionism is a bad idea" rule-- like I previously tried to argue.
They propose a series of reforms to the patent system (with the eventual goal of phasing it out) that would reduce costs.
I over estimated the amount of R&D money that was being properly spent. I did not realize how effective certain parts of the global industry have been in the absence of patents. And I did not account for the fact that the patent system incentivizes copy cat drug design. I look forward to finding out where else I'm wrong about healthcare economics.
Here is another place where I made a version of my argument (with some other context added): https://news.ycombinator.com/item?id=7498742
Here is where I retracted the faulty assumptions I made in that comment: https://news.ycombinator.com/item?id=7499369
My unchecked assumptions led to a flawed argument.
It wasn't clear from my post, but patents are obviously important, just not to protect everybody's random ideas.
That is why it so important to make the point about the investment. In the pharmaceutical industry (and others) there is upfront cost and that should be encouraged and subsequently protected for some time.
I still have some philosophical reservations about patenting facts i.e. "this gene does that"; yet I think that is not avoidable.
The "Is society as a whole served" question, to me is the paramount criterion. How to establish that for a particular invention, I do not know.
(1) Most s/w patents are not for 'inventions' that are non-obvious and therefore not even capable of being kept secret in the first instance, and,
(2) So many patent applications are so broad as to not actually describe a system in an implementable way. End result: we offer up monopolies, benefiting the 'inventor' but end up with no knowledge added to society. A situation that impoverishes the many to pay the few for pretty much nothing.
What was the reason for creating the patent system in the first place? To give people an incentive to invent new things: if someone invests the time in coming up with something novel, the legal system would give a temporary monopoly in return.
But in today's world, clearly one would imagine the vast majority, if not all software would have been invented as is, without the incentives that patent protection provides. When one contrasts this with the well-known downsides of software patents, the outcome should be clear: abolish them.
No, the point of the patent system is not to incentivise invention. The point of patents is to destroy trade secrets. The word "patent" means "open". The whole point of patents is increase society's knowledge of how to do things.
People invent with or without patents. What they don't always do without patents is to say how those inventions work. The bargain inventors make with patents is, tell us how you did it, and in exchange we promise to not compete with you for a while.
This is an awesome patent:
http://www.google.com/patents/US5255452
This is what patents are supposed to be about: a magician revealing his tricks. Without the patent system, Michael Jackson may have taken his idea to the grave.
The problem is that almost none of the people patenting software are magicians.
> What they don't always do without patents is to say how those inventions work.
For 90+% of patents, the idea is implicitly disclosed by releasing a product that makes use of the idea. In cases where a trade secrets can be effectively kept, that's what companies do!
Most people forget the patent system is based on one simple idea: you can exclude others using an idea you have a patent for, but society must have that idea shared in return for the protection, and after a limited period of time anyone may be allowed to use the idea. 20 years is a bit long for software when things are moving at such an accelerated pace, but coming up with an appropriate period of time is also difficult.
Has anyone ever read a software patent to learn something other than "do I infringe on this?"
I find it so hard to beliebe that people on hacker news think about these issues at such a childish level; everything is black and white, and we'll ignore the facts if they don't suit our world view.
I guess your experience has been different? Care to share details?
> beliebe ... childish level
Was that misspelling some kind of intentional Beiber reference?
Don't assume that my opinions on patents match the typical hacker around here. For example, I don't think software patents are intrinsically special by virtue of being more mathematical than ordinary patents.
Honestly, I have a hard time understanding how you can live in this world and hold the view that patents are non-negligible contributor to our shared knowledge base.
I guess I could see the argument that valuable information is released from the major companies in the form of whitepapers, and that those whitepapers wouldn't be allowed if not protected by patents. But I still think that if you nixed software patents altogether, the impact on disclosed information would be minimal.
It seems from your tone that you believe that a company who is intereste din patenting any ideas their engineers come up with is somehow evil, but it's just an effort to protect any competitive advantage they have.
Sure there's nothing stopping companies releasing their trade secrets, but the patent system gives them the incentive to, for the benefit of themselves and others. They're primarilly about ensuring developments in the usful arts are made available for all for the greater benefit of society. Too many people forget this fact.
I'm glad at least one person can see that most patents are not just a matter of being mere algorithms; they're specific processes which have some kind of useful result. Arithmetic coding by itself is a mere algorithm, but its use to compress data in an optimal way is patentable because it provides a useful useful result. There are countless other examples, but they are too often misreported because of a lack of knowledge of the patent system or even how to read a patent correctly when it comes to the legal metters involved.
No, not at all. I'm blaming the patent system, not the company. I see the potential benefits of patents as:
1. Research is pursued because of an economic incentive that would not exist if it were not patentable.
2. Research is disclosed that would not be disclosed were it not protected by patent.
You seem to think 2 is more the point of patents than 1, but I don't think that's either historically accurate (both were reasons as of the writing of the constitution) or that it's playing out in practice today.
The cost of patents is obstructing / taxing innovators, particularly when they didn't benefit from the patent they're infringing. With the dials set where they are right now, I think the cost of software patents greatly exceeds their benefits.
The Constitution itself gives the reason as "to promote the progress of science and useful arts". Numerous letters written by the Constitution's framers support the interpretation that the goal is to incentivize creation by granting monopolies.
The history of patents is long, but Queen Anne's statute is where the the nature of disclosing trade secrets was formalised:
http://www.ipo.gov.uk/types/patent/p-about/p-whatis/p-histor...
As Thomas Jefferson wrote about the US patent system: "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility..."
We already see this in a number of areas of computer science, where the algorithm state-of-the-art at private companies is a decade ahead of the public academic literature. This basically has the academics in many computer science domains essentially trying to reinvent things that have been known for years as trade secrets at large companies rather than doing genuinely original research.
I do not think there is an obviously good solution, since algorithm patents are difficult to enforce in any case, but one of the trends resulting from a lack of algorithm patent enforceability is that almost all cutting edge computer science R&D is now done and kept as a trade secret by companies because it has a material commercial advantage.
No one forces you to choose a patent over keeping your invention secret. Trade secrets still exist everywhere. And that's OK.
You say it's a problem that companies are a decade ahead of academia in some CS areas. Given that companies can choose what to make public and what to keep secret, what's the alternative? It's the ability to have some exclusive time in the market that incentivizes the companies to do that research in the first place. I'd rather have them ahead by 10 years because of trade secrets than getting 20 years of exclusivity through a patent.
Graph analysis platforms are a great example of this. Every open source graph analysis platform is a non-scalable toy that is useless for most real-world use cases compared to private systems that were being quietly deployed five years ago. Why the discrepancy? Because the unpublished algorithms and data structures used by some closed source systems are several orders of magnitude more scalable than is possible with the best existing public algorithms. And this is not the only example with which I am familiar.
The problem open source software has if it is based on increasingly obsolete computer science is that it will not be economically competitive with closed source that is much more scalable and/or much faster and/or has much higher throughput per watt. A combination of materially better capability and efficiency has an enormous impact on CapEx and OpEx, and people care about those kinds of things when it starts adding up to large amounts of money.
The difference is that had the invention been patented, the academic world could be advancing and building on the idea. Trade secrets effectively freeze the progress of an idea. Patents allow an idea to be advanced, even if no company could commercially benefit from the idea in the intervening time. Are we better off as a society with Watson's inner workings kept as a trade secret?
What is the probability that such an idea is independently recreated? Hard to say, but its likely inversely related to how ground-breaking the invention is, which are the ones that society benefits the most from them being made public.
If someone invests the time in coming up with something novel, and discloses it publicly. If I remember correctly, public disclosure was the more important part of the original motivation for the patent system.
"patents are intended to facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, in many cases, they might prefer or tend to keep their inventions secret."
That's from Wikipedia, but I'd be interested to see a better reference if anyone has one. So, to play devils advocate, given that motivation you can see an argument for software patents. Potentially a stronger one than for other patents.
It's much easier to obscure algorithms than other inventions. If an algorithm is not patentable, many companies might choose to just obscure the algorithm either by offering it as a service or obscuring the code.
By allowing software patents for a complex algorithm the method is released into the public domain in return for a limited monopoly. After the term of the monopoly, the algorithm will be freely available for use by everyone.
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;
It could be that in our society (USA), people would be so willing to invent software without patents because the patent system itself has created an environment by which people can be successful from being so open. The intention of the patent system worked.
A lot of societies are very closed with regards to sharing information.
The magnitude of the investment is one of the reasons people tend to accept the concept of patents more in some field than in others.
So, what inventions should deserve such protection? For example, ideas which by their nature must be disclosed after a large investment in their development, but before having a chance to be placed in the market. Regulated industries like drugs come to mind. Even then, the extent of the protection should be limited to a (short) period to prepare and launch commercial exploitation of the idea. Therefore, the patent should include proof and plan for such commercialization of the idea.
From an enforcement perspective it could get pretty ugly. Also, the law is at its best when it deals in definable concepts. Large is relative. For Google, an investment to large to be pursued on a whim has 4 or 5 more zeros than it does for me.
If a particular invention is created that realizes the idea, I agree that the invention should be patentable, but it sounds like your post advocates patents on scientific research.
If you need money to do something you will get it from someone who wants to get back something (modulo risk), and the patent system is one way to transform ideas in value that can be traded. It's not the only way, and not all the alternatives are better.
My point was that as long as there is a real work behind a patent, people tend to show more understanding of the need of a patenting system, while being rightfully outraged in cases of patent trolls and/or plain bullshit.
The question is, how do you draw the line between the two?
This is what has traditionally been protected by trade secrets - the problem is that software is easier to reverse-engineer than real-life problems. The integrated circuit community has dealt with the issue ever since they were invented. My feeling is that the possibility of reverse-engineering has in fact spurred innovation in that field, and it's another reason why the no-poaching agreement between Apple and Google is so abhorrent, it did not only depress wages, it also slowed progress in the field.
On the other hand, there is the issue of "gene patents". A pharmco takes out a patent on a gene, because you cannot patent abstract ideas, but what they are really doing is protecting the relationship between a gene and a medical condition. This is early discovery, and the price tag and timeline is that of a small space mission, several hundred millions and the better part of a decade. Once something is admitted to market the project is comparable to a flagship space mission, several billions and two decades of work. Patents are the wrong tool for that kind of job.
The problem is with the obviousness bar, which is far, far, far too low. I haven't studied the Alice patent, but let's take what the NYT says about it here:
The issue in this case, Alice Corporation Pty. v. CLS Bank International, is whether using a computer to implement a well-established economic concept can be patented. [...] Alice Corporation obtained four American patents that cover a method of settling trades between investors in currency and other financial markets. The approach depends on a neutral middleman to make sure traders complete the transactions they have agreed to. [...] Alice Corporation has argued that its patents cover a specific computer-enabled system and method, not the fundamental idea of using intermediaries in financial settlements. But CLS Bank, which first sued Alice in an attempt to have its patents invalidated, says that Alice’s system does not add anything meaningful to a basic idea.
The NYT Editorial Board is using this argument to urge the Supreme Court to rule that this patent's subject matter is inappropriate. But I think this can just as easily, if not more easily, be read as an argument that the invention in question is obvious. Taking some process that was previously done by hand and computerizing it, or some part of it, is, in this day and age, a paradigmatic example of something obvious.
Again: I haven't studied the actual patent. I just think it's unfortunate that everyone is talking about this as a subject matter problem, when we have a screaming obviousness problem that the Federal Circuit is right at the center of.
I want the Supreme Court to tell the Federal Circuit that mere novelty does not entail nonobviousness. In such a highly generative field as software, which has an uncountable number of applications, simply coming up with another one contributes little or nothing to the state of the art. If someone else who encountered the same requirements could implement a system to satisfy them just as easily before reading a putative patent as after reading it, there was no intellectual contribution and the patent should not be valid. This was clearly the intent behind the patent system at its inception. It should be restored.
Let me give a cite for that. From [0]:
The [Federal Circuit] watered down the rule against obvious patents. Supreme Court precedents prior to the creation of the Federal Circuit held that merely combining two previously-known technologies in a straightforward fashion was too obvious to merit patent protection. To be patent eligible, the Supreme Court held, an invention needed to be "greater than the sum of its parts."
The Federal Circuit developed a more permissive rule that only allowed a combination of known components to be declared obvious if there was specific documentation that someone had suggested that combination prior to the patent application. The court adopted this rule to guard against the danger that hindsight bias would lead people to over-estimate an idea's obviousness. But the court seemed less concerned with the possibility that some combinations are so obvious that no one would bother writing them down.
[0] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
I once jokingly suggested a patent about paying online, but lo and behold, someone has that too.
I wish I were joking.
My views on patents were (subsequently) very strongly influenced by this paper: "Against Intellectual Property" by Brian Martin:
http://www.uow.edu.au/~bmartin/pubs/95psa.html
I would encourage anyone with an opinion on the topic to take a look at it. I'm not sure I agree 100% with everything in there, but the reasoning is very good.
These days, I'm much more in the "abolish software patents" camp than I used to be. The only valid reason I can think to have one now is for "freedom to operate", but I can attest from bitter experience, that simply doing a defensive publication of the core idea is significantly cheaper than obtaining a patent on the pretext of freedom to operate.
In any case, a system that necessitates spending upwards of US$100k to obtain freedom to operate, has something diabolically wrong with it.
Lets leave aside economic implications for a moment. What is an invention? Is it really different to a discovery. There is no good way to distinguish between invention and discovery because they're not distinct concepts. Distinctions are semantic, even in an archetypical example of patentable invention like Edison's lightbulb. Inventing a lightbulb is discovering that electricity can heat a filament, it emits light when hot and can be prevented from burning by placing it in a vacuum.
These are exactly the types of problems the law chokes on.
How, exactly?
I was at the roundtable where they announced it: http://www.uspto.gov/patents/init_events/sw_partnership_2013...
The solution is to make laws that forbid software patents. And if the old patents can be abolished, the better.
Why is this basic, fundamental concept not understood by people who purport to know about "software" patents?
This is not my opinion, it is fact. Look it up.
If this interpretation of your comment is correct then I don't see how it is in conflict with my observation that abstract ideas can't be patented.