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An End to Software Patents?

The U.S. Supreme Court is about to issue a ruling on a case that may invalided a lot of software patents and make patenting of software and business process more difficult, if not impossible. A sensible view on that in the Economist.

Countries with most international-patent applications.

An entry on the U.S. Supreme Court’s blog and wiki,

5 Responses

  1. Can’ wait to see this nonsense go. Here is an example of a Realtor screwing other Realtors out of ethics they are supposed to uphold when they get their licence awarded (mind, within the same association) and have a ‘patent pending’ on the business model….there is just no social norm anymore, what so ever.

  2. @VRdundee: What a mixup! The patent ruling I mention above relates to U.S. American patents. The website you link is Canadian. Regardless of jurisdiction, a ‘patent pending’ is not worth more than the actual patent.

    Or maybe you were referring to my last tweet at the time of writing, which is related to real estate, motivated your post?

    http://www.canadianbusiness.com/pda/new_article.jsp?content=b085295429 is good news for the Canadian real estate market, but it won’t prevent the kind of abuse you point out.

  3. Am I reading this wrong or is copyrighting, which lasts even longer, socially better than patenting your work? I say socially because the Economist article derides patents because of their social effects and then goes on to offer copyright as a better social solution.

    Assuming they don’t mean GNU and such when they talk about “copyright”.

  4. @Ehsan: Let me first point out: GNU is an operating system. You may have intended the GPL – the General Public License under which GNU and many other software are licensed. To license something, it must be owned/copyrighted so your assumption is wrong, the GNU GPL is also derived from and falls under “copyright” for the purpose of the article.

    To answer your question contrasting patents and copyright from a social perspective, let’s look at the nature of the two and their social consequences.

    Patents protect the implementation of an idea, while copyright protects “only” its expression. Let’s take a simple example of a software idea: a count-down counter.

    Assume I am the first person to invent a count-down counter. I patent it. And I implement it:


    If the idea is copyrightable, then nothing forbids you from writing your own count-down counter:

    echo i;

    We’ve both expressed the same idea, each in our own words. Your expression and my expression are both copyrighted. We don’t infringe on each other’s right. You can license your code as you please (e.g. GPL), I can license my code as I please (e.g BSD), and a third party can rewrite another expression of the same idea and use it in its proprietary licensed software.

    This makes the duration of copyright protection mostly irrelevant for software where what the consumer cares about is the functionality, not how it is expressed. If you see a function that you like in copyrighted proprietary software, there is nothing that prevents you from re-implementing the idea in your own software. The extra-benefit of Open Source is that you don’t even have to re-implement, you can just copy & paste, as long as you comply with the terms of the license. It’s nice to have, but not a necessity.

    On the other hand, if the idea of a count-down counter would be patentable and I held a patent on it, I could forbid you to implement a count-down counter or I could charge you royalties even if you did not take inspiration from my work to develop yours, and this for the whole duration of the patent.

    You judge what you think is socially better.

    The situation is completely different for pharmaceuticals and if I recall correctly (it’s more than a week since I read it) the Economist article does not deride patents as a whole, it only takes issue with a specific category of patents: software patents.

    In software, re-implementing what you see in a competing software (a form of reverse-engineering) is not so much more inexpensive than implementing the idea for the first time, hence there is no disadvantage in being the first-mover even if it is not patentable.

    In pharmaceuticals on the other hand, reverse-engineering and duplicating a molecule is magnitudes cheaper than the process the first-mover has to go through to develop the molecule and getting it through the approval stages for medical use. Hence, if there was no patent protection, it is unlikely that a for-profit entity will make the first move and develop a new medicine. It will wait for somebody else to pick up the cost, then it will make cheap generics.

    Patents are a necessary evil to support innovation in a few fields. Software has very little in common with those fields. Software patents as they are today hinder innovation. An improvement could be to make the duration of protection proportional to the duration and capital-intensity of the development cycle. Software patents would last a fraction of pharmaceutical patents and the problem would be partially solved. But why bother? As the Economist’s article already points out, there is no problem to solve – copyright is more than adequate protection for software, proprietary or Free.

  5. Thanks for the explanation, Yuval. That’s cleared it up for me.

    As a side note, I’m a PhD student in a Biochemical Engineering Department and although my own research field is very far removed from pharmaceutical research, I am in close contact with biochemists and pharmacists. Pharmaceutical patents have a lot of short comings, as they offer no incentive to companies to pick up novel drugs mid-development. Think of a drug that has been taken through the early stages of development by a company that goes bust after holding the patent for 5 years. No other company will pick it up because of the limited time remaining for the patent. The result is that you have a potentially life saving drug for a disease like Alzheimer’s sitting on the table with nobody bothering to touch it because they don’t believe the remaining time left on the patent is long enough to recoup their investment.

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