Scrap the patent system entirely?

We know that patents are bad for the software business. The whole reason patents exist is because it is thought that giving a time-limited monopoly to people who invent things promotes progress by encouraging, well, people to invent things. This doesn't work in software because:
  • patented software ideas are generally obvious to practitioners of the area the patent is about;
  • the length of a patent monopoly (17 years) is way out of proportion with the speed things move in software;
  • barriers to innovation in software are intrinsically low to begin with - anyone can innovate and no incentive in the form of a time-limited monopoly is necessary to encourage people to do so;
  • arguably most potential innovators in software are individuals and small companies, who can hardly use the patent system because they can afford neither the time to file the patents, nor the money to fight infringements;
  • progress in software is intrinsically cultural and incremental, not epochal - people gradually improve on other people's ideas, nobody does (or has to do) research and testing for 10 years, like in the pharmaceutical business, before bringing an idea to the market.
All of these reasons combine to make the idea of patenting in software very, very harmful indeed. Instead of being used as an incentive, patents are used as:
  • weapons for big companies to fight each other with;
  • weapons for big companies to destroy potentially threatening small competitors before they grow;
  • leverage for patent sharks (like this bastard) who use sleeper patents that no one ever knew of to extort enormous sums of money that they did not even earn and which no one owes them.
So, at least as far as the software business is concerned, the patent system is more so a vehicle for power play and extortion than for anything good, and should be banned.

A valid question remains, though, whether the patent system is still good at solving problems in other businesses, such as pharmaceuticals. In medicine, it can take an outlay of a billion USD or more to bring to market a useful drug. Reasoning goes that no sensible pharmaceutical company would ever engage in this endeavor if it weren't for the patent system, which helps companies recoup the cost by keeping competition at bay for a few years. (The patent lasts longer than that, but it only prevents competitors from using the very same compound, not from using a similar one; and competitors generally need a few years to bring to market an alternative compound with similar effects.)

Joseph E. Stiglitz recently wrote this article listing some of the demerits of this use of the patent system in medicine, and proposing that the system be replaced with large (state-sponsored?) rewards for desirable medicines. I think this is a good proposal, its only fault being that the reward system would need to be competently administered, and I guess we know how competent administrations tend to be. Nevertheless, if the state was bold enough to offer really good rewards for developing valuable cures - e.g. on the order of $2-10 billion USD - I think the idea would work.

An optimal solution would be one that neither grants a monopoly, like patents, nor requires a central administrator, like the reward concept would. Something that's self-managing and yet not prone to abuse. That would be a trillion dollar idea. If someone has it.

Care to patent it?

Comments

boris kolar said…
One idea i presented a while ago, was the following modification of patent system (to avoid confusion, i use notation "zatent" as my modified idea of patent):

1. Everything is zatentable
2. Zatent acquisition is free
3. Zatent does not give you any rights

The first rule means that anyone can zatent anything, including water or numbers zero and one. Zatenting water, for example, merely means you were aware of existence of water at the time zatent was granted.

The second rule implies that zatent applications should be granted automatically without any checking. You could even zatent encrypted text.

The third rule is rather obvious. Unlike patents, which attempt to settle intellectual property disputes in advance, zatents can only be used as proof of knowledge after dispute. Any solution to discourage stealing of other people's ideas is orthogonal to zatent system.

One solution to discourage stealing of other people's ideas (and thus promote generally nice and socially responsible behavior) is outlined in my comment to this post of yours. If someone feels that a certain company has unethically stolen his idea, he could present his case online (together with zatent proof) and ask people to punish this company for bad behavior.
denis bider said…
There already exist a number of ways you can prove you were aware of something before others, but zatents might be a good idea to standardize the process.

That said, zatents combined with public penalties cannot replace patents because this would only work for the most popular stuff and would fail for everything outside the range of popularity.

If you invent idea X that no one cares about except companies which use it to create product Y; and product Y is something no one cares about except for a few companies who provide a very important service Z; then it will be very difficult to convince everyone who uses service Z that the company who manufactures product Y has violated your intellectual rights by not paying you for idea X.
boris kolar said…
You're right. Such a raw idea needs to be refined a lot before it can work. I'm thinking along the following modification scheme to penalization:

- since penalty is cost free, so should be endorsement (not only you can vote "no", you can also vote "yes" without buying anything)
- penalties and endorsements can be delegated (for example to company that monitors and automatically penalizes patent infringements)
- introduce a threshold, so that having few enemies (or being black or Jew, which i expect will be penalized by some people just for that) won't have any effect

The one vote per person (in contrast to wealth based) idea seems like an improvement as well (although I'm not exactly enthusiastic about democracy).

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