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SFLC Tells SCOTUS, "Software Patents Are Unjust"
H4x0r Jim Duggan writes to inform us that the day after Red Hat advised SCOTUS that software should not be patentable, the Software Freedom Law Center filed its amicus brief in the Bilski case. "In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those 'tied to a particular machine or apparatus,' or which 'transform[s] a particular article into a different state or thing,' a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs. ... This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas." Groklaw is running the usual cogent gloss with the full text of the SFLC's brief.
A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).
The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors.
OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals. They claim to spend anywhere from $100 million to a billion dollars or more to come up with a successful new drug. They patent it. Then, with the required years of development and testing, they get to put it on the market for maybe 12 years or so, without competition, and they charge anywhere from $100/month to $1000/month or more. After 12 years, GenericCo starts selling them for $4/month, so they then have to drop their prices to compete.
For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.
If it took them $500 million dollars to create the drug, and they have only 12 years to sell it, they have to make more than $500 million dollars to make the investment worthwhile. Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.
Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.
That's the general argument in favor of patents. As a society, we pay the creative and smart people to keep being creative and smart. Do I want them to stop innovating, and not create the cure for whatever disease I'll come down with in 3-5 years? I certainly hope not!
The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.
Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.
John
The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.
Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.
And without even addressing your question - which is a good one, and worthy of hours, if not days or months of debate - I ask this: is this a question for a legislative body with power to amend and redraft patent laws, or a question for a judicial body with power to interpret laws as they are currently written? 35 USC 101 allows patenting of processes. Software is processes. Therefore, software is patentable... provided it doesn't fall under one of the narrow judicially-created exceptions. If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.
Red Hat has always taken the stance that Software Patents are bad and should die, and I would bet they have done much more to further this goal than the FSF. If only because they are a company, and have much more money.
ustr: Managed string API with ave. 44% overhead over strdup(), for 0-20B
OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals.
yes, let's. When one of their drugs is about to go generic, or has even just lost its buzz in the media, they make a slightly different version of the same drug, receive FDA approval for the new drug on the basis that it ought to perform similarly to the old drug, and some extremely minimal testing which only must ensure that it is less harmful than a placebo. They then market the new drug as the best treatment for an ailment when in fact they do not really know if the new drug is more or less effective, since the study sample size is not large enough to determine that. Then you get Zyprexa.
There is no fucking way that big pharma deserves any slack. None. Record profits, just like big oil. No fucking way.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Of course, Big Pharma is well known for not playing within the rules, and is certainly not above bribing 75% of Capitol Hill to get their way. But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."
My point, to which you seem to have twigged only halfway, is very much that they ARE playing within the rules, and that the rules stink. If we have a government where spending more money on lobbying works better, and we permit patents to be used as they are, then the natural consequence is that they will be abused to the detriment of society. Patents are a legal fiction intended to benefit society. QED, if they don't do that, they should be abolished. Humanity will not lose its interest in fighting illness if we stop attaching profit to impeding the process. Much of what big pharma does is in fact harmful to the process of healing illness, simply because they are willing and able to sell ineffective or partially effective products.
I'm not arguing that we should eliminate capitalism, but that government intervention in the form of patents is half-assed. I don't complain about the size of the profit, I complain about the size of the ill-gotten profit.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"