A patent on an invention that many people would easily develop independently of one another should not, it is argued, be granted since this impedes development. [1]
There's nothing unique about software that makes it more likely to be developed independently by many inventors, the same happens often with hardware patents. And the same argument applies - the patent system as a whole impedes progress as much (or more?) than it advances it.
The argument for why software patents are different is premised by why patents exist.
They exist to grant someone a monopoly in exchange for them sharing their invention with the world. If I patent a dishwasher that does not clog, I will be rewarded for my invention... But once the patent expires, a skilled engineer will be able to look at my patent, and build a dishwasher that does not clog - in far less time then it took me to build mine.
The overwhelming majority of the time, Software patents grant someone a monopoly, in exchange for them sharing nothing remotely useful to society. Looking at that software patent will not save another engineer any time whatsoever, in cloning my product.
With that kind of patent, I am using the legal system to enrich myself, without giving anything back.
Not all software patents are alike. Some of them actually demonstrate an original, complicated, novel, non-obvious technique, in sufficient fidelity that an engineer, looking at the patent filing can reproduce the secret design, with far less effort then it would take them to do so without the patent. That is an example of the patent providing benefit to society - that merits society providing it with legal protection.
I would argue that all software patents should include complete source code and build details necessary to compile a working version.
Something like MP3 or h265 represent nontrivial investments in information theory, and I'm basically okay with patents granting a (temporary) exclusive licensing period in exchange for sharing the practical code and theoretical work.
Patenting something like "one click ordering" or "facilitating inter-personal communication by sending audio over the internet" is just ridiculous.
With your ideas about patents someone should do it out of the kindness of their heart I guess. Is that what has driven most technological advancements of the human race?
In your software-patentless world, why would a genius choose to work in software as opposed to another field inventing patentable tangible objects where he or she will be monetarily rewarded for it and able to make a living? Don't say you are already paid by your employer to program. Someone inventing physical objects would probably also be already paid by their employer to work. This brings us back to why would a genius choose to work in a field that won't reward them for their genius?
No, you get a patent for your secret anti-clog dishwasher, so that the courts grant you a monopoly on it. In exchange, you have to give something back - specifically, you have to reveal your secret design to society - so that it is useful to someone in the future. That's the contract that you agree to, when you patent something.
If you don't want to reveal your design, you could always keep it a trade secret.
If you're a genius working on software, you shouldn't have trouble filing a patent that would be useful to another engineer, once it expires. For some reason, though, people instead patent stupid shit like 'a software system that does _______.' They don't actually explain how to build a software system that does _____, they don't give anything back to society, and are instead leeching of the largess of our legal system.
If you want protection for your invention, tell us how it works. It's a pretty simple concept.
But does mp3 fall in the category you describe? I agree with you that many software patents should not be granted, but the distinction should not be between software/notsoftware.
Software patents aren't particularly useful for making money with software. Hackers produce code, which is protected by copyright, and that's how the law protects them from having their work stolen. Patents are a bad match for software, and are mainly used for two things:
1. Trolls use them to seek rent from independent creations.
2. Companies that are not purely trolls but need a vector to attack another company sometimes use them in the same way trolls do.
3. Entities that actually make software use them as a deterrent against patent claims.
Nobody actually depends on them for the profitability of software they've made, and nobody actually benefits from the disclosures in expired patents. Software patents are purely weapons. The hypothetical genius you're talking about would not be harmed at all if they went away, and would be better off because they'd be spared the vicissitudes of patent trolls' attention.
There are alternatives to patents - for example hosting research intensive parts of your system in the cloud.
This is pretty much what is happening with speech recognition these days among other things.
No need to worry about opensource, or the fragility of patents, when you keep your technology a secret.
Another approach is to use trade secrets - you encrypt parts of your application - reducing performance - enabling you to sue anyone who decompiles it in order to replicate, or indeed interface with it.
Patents would actually seem the least of these evils, if they were only less broken.
Debating software patents with silicon valley types is a losing battle. They're the types who would stand to profit from someones non-obvious software invention not being patentable, and so most such people are unsurprisingly against software patents. There's little nuance involved beyond that.
Require is the wrong word. The question is were we better off with or without them having a patent. Not keeping RSA a trade secret seems like a win for society.
That presupposes a lot. Who says it would have been kept a "trade secret"? And, supposing it would have been, who's to say someone else wouldn't have come along with an alternative open solution?
The difference is that person now has to sell their idea packaged in a finished product to see any return on their idea. If you could patent it and license it, you could make money on the idea while leaving the work of developing a polished product to the experts at delivering products to end users.
Ideas in the software world are essentially worthless. Execution (your ability to implement the idea) is what actually matters. So, forgive me if I'm not losing sleep over the person who has to actually do work to see "return on their idea."
The same can be said about inventions in any sphere. But that's exactly what patents correct for; to give value to ideas independent of them being productized. And so your point is not at all an argument against software patents.
Patents are not meant to be a way to stake a claim on an idea (https://www.legalzoom.com/articles/can-you-patent-an-idea) — they're a system where you get a temporary monopoly in exchange for sharing a novel, non-obvious and non-abstract invention.
To be clear, I didn't say that's what patents are for (i.e. their purpose), but what they correct for, i.e. what they do in practice.
But I don't see that the two descriptions are different in practice. Patents incentivize publicly releasing an invention instead of keeping it a trade secret (or letting it languish). The problem this is solving is that ideas aren't valued by the market, only products. But society benefits from ideas independent of products. And so the solution is a system to put value on ideas, ergo patents. This meshes with my alternate description.
The problem is software isn't tangible. Something like an algorithm is different. It's mathematically provable. The vast majority of software patents are based on preexisting concepts such as the patent IBM was awarded for "Resolution of Abbreviated Text in an Electronic Communications System", which is a database that looks up abbreviations like netspeak and fills in the full word. Or Google's patent for "Variable User Interface Based on Document Access Privileges" which shows something different on a webpage based on your geographical location. Something websites had been doing for years. These frivolous software patents by major tech companies are predatory and stifle innovation. They know the patents won't hold up in court, but they can afford protracted legal battles startups cant and use that leverage to strong-arm smaller companies.
Right, it was only after the patent office was invented that people started inventing things. Before that, nothing of consequence was created by humanity.
I think the landscape for software patents is worse. For actual physical goods I've seen many example where the patent system does what it intends but I haven't really seen a similar benefit in software. Maybe there is one and I'm just not exposed to it, though.
But the vast majority of US software patents are not patentable in Europe. If the US patent system would impede progress the effect should be a stronger European IT industry. I am doubtful of that though.
One still stay away from stuff that is patented in the US as a European company though, most European companies want to go to market in the US sooner or later.
That's actually a pretty great argument that software patents are a good idea for the US, it prevents foreign copycat competition from soaking up the market on us.
A patent on an invention that many people would easily develop independently of one another should not, it is argued, be granted since this impedes development. [1]
1. https://en.wikipedia.org/wiki/Software_patent#Obviousness