Where patents advance the useful arts

Where patents advance the useful arts

I think you're interpreting the reverse engineering argument totally backwards.

Patents protect what is easy to reverse engineer, not what is hard.

No, you've got it backwards. The original, essential purpose of a patent is to protect what is hard to reverse engineer. A patent is a deal the public makes with an inventor wherein the inventor agrees to divulge how his invention works and the public in exchange guarantees him the exclusive right to profit from the invention for a while.

Patents were created in a time when reverse engineering was hard and people protected their inventions by trade secret. Sometimes, they died with those secrets. While alive, they had to be very careful to whom they licensed the secrets. It was bad for everyone.

Note that "patent" is the latin word for "lying open." A patent is primarily about disclosing what you invented, not laying claim to it.

Today,, we see a whole other function of a patent: to protect what is easy to reverse engineer. For this kind of invention, the inventor does not have trade secret as an option -- if he sells the invention, the first buyer will know exactly how it works. But he has another alternative: abandon the idea, and don't bother to develop it into an invention at all.

Drug patents are a good example of this. A drug company can't keep its formula secret, but it doesn't have to develop the drug at all. Developing a drug into an invention costs millions of dollars. The patent is a deal the public makes with the drug company: you create a drug for us, and we will let you profit from it exclusively for a while.

So, in conclusion, the pro-patent theory of which ESR speaks is two-pronged: Where an invention is expensive to develop or hard to reverse engineer, the patent system can bring valuable new technology to the world. Software patents tend not to fall into either category.