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why software is different

why software is different

Posted Nov 14, 2012 15:30 UTC (Wed) by Cyberax (✭ supporter ✭, #52523)
In reply to: why software is different by pboddie
Parent article: Phipps: Stop patent mischief by curbing patent enforcement

Most patent owners are not interested in gatekeeping, they are more interested in patent licensing.

And patents allows a small company in pharma/biotech/biochem to earn money. In almost 100% of cases it's the only way they can do it.

Obviously, situation is different in 'mechanical' patents and completely different in software patents.


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why software is different

Posted Nov 15, 2012 0:31 UTC (Thu) by pboddie (guest, #50784) [Link]

Most patent owners are not interested in gatekeeping, they are more interested in patent licensing.

That may be true, but it doesn't change the fact that they are by default appointed as gatekeepers. You can get into compulsory licensing situations, which touches somewhat on matters related to the original article, but then you have to assess whether patents have any real, distinct purpose at that point: why not give contributors to a standard or "essential" solution a prize and leave it at that?

Also patents related to pharmaceuticals are not exactly a panacea, even though they may indeed encourage risk-taking amongst smaller businesses. For example, there is a degree of interest in "generic" medicines for purposes other than those for which they were originally intended, including even withdrawn medicines, although I suppose one can argue that this is of niche interest, that the bulk of new treatments come from new discoveries protected by patents, and that the interest in medicines covered by expired patents has only been rekindled by improved technology and techniques to better understand their action.

But still, I feel that a specific justification of patents, along with the privileges they afford, is missing. They may not encourage innovation more than various alternatives for all we know, and I also suspect that the mass issuing of patents is perhaps a way of delegating responsibility for progress in technical domains to a growing circulation of paper bills and is thus reminiscent of the way that a lot of issues are "solved" by policy-makers who do not wish to concern themselves too greatly with the mechanisms involved and their subsequent effects.

why software is different

Posted Nov 15, 2012 6:08 UTC (Thu) by Cyberax (✭ supporter ✭, #52523) [Link]

> although I suppose one can argue that this is of niche interest, that the bulk of new treatments come from new discoveries protected by patents, and that the interest in medicines covered by expired patents has only been rekindled by improved technology and techniques to better understand their action.

That's actually a problem because you can patent a new treatment based on an old medicine. Several companies did exactly that, unfortunately. But yes, it's rare.

>But still, I feel that a specific justification of patents, along with the privileges they afford, is missing.
It's simple - no-one in industry would be doing drug research without possibility to get at least some profit. And right now it's simply not possible without patents.

why software is different

Posted Nov 15, 2012 13:00 UTC (Thu) by pboddie (guest, #50784) [Link]

A *specific* justification. In other words, are they the only thing that would reward people doing the work? Might there not be better ways of rewarding that work instead?

why software is different

Posted Nov 15, 2012 19:44 UTC (Thu) by dlang (subscriber, #313) [Link]

> Might there not be better ways of rewarding that work instead?

sure there could be, but no matter what solution you come up with to any problem, there's always a possibility that there is a better solution out there that nobody has thought of yet.

In the case of pharmaceutical research, there does not seem to be a lot of option.

either you decide that all research should be government funded

In this case, the government bureaucrats are the ones who decide what research gets done. This is something many people see as a bad choice.

or you want to have the private sector do the research

In this case you need some way for the companies doing the research to get their cost of research back, plus a profit. Including the cost of research for the drugs that fail.

Patents work in this field in that they allow for this profit to be generated.

Are there other ways that this could be done? Probably, but I haven't heard anyone suggest anything that sounded plausable to me. Let alone pointing at something that has been tried anywhere in the world that has worked better.

why software is different

Posted Nov 15, 2012 20:44 UTC (Thu) by anselm (subscriber, #2796) [Link]

In this case, the government bureaucrats are the ones who decide what research gets done. This is something many people see as a bad choice. or you want to have the private sector do the research

… which may turn out to be an even worse choice for various reasons.

One is that private pharmaceutical companies tend to concentrate their efforts on potential big money-makers, such as drugs targeting the chronic diseases of affluent Westerners. There are lots of diseases which could use a lot more research effort (tuberculosis comes to mind) but are not as interesting to pharmaceutical companies because they afflict poor people in out-of-the-way places.

The other problem is that pharmaceutical companies are often extremely sloppy when it comes to reporting the results of clinical trials, especially if the results are not as positive as they are supposed to be.

why software is different

Posted Nov 15, 2012 21:02 UTC (Thu) by dlang (subscriber, #313) [Link]

please show me anyplace that has eliminated private research and then done well.

supporting private sector research does not prohibit government funded research, it just means that you aren't at the mercy of the bureaucrats and their decisions.

is there anyone who thinks that the type of people who make up the DMV and the IRS are the ones you want making these sorts of decisions?

why software is different

Posted Nov 15, 2012 23:21 UTC (Thu) by pboddie (guest, #50784) [Link]

I think you're mixing up a few things here: who decides what gets funded, who does the work, who actually pays for the work, and who gets the reward, along with whether the work generates more revenue than it cost, and whether the preceding factors encourage more or less progress in the field concerned.

You can have various public/private combinations of these things, some being more controversial than others, such as the public paying for the work and then the specific employees concerned profiting from patents that have been filed. You can have policy delegated to the market, albeit with government-backed guarantees for revenue generation, which is what patents effectively are. You can have policy determined by both public agencies and private institutions; the quality of policy decided by the former need not be worse than that of the latter (contrary to the ideology of certain political schools).

Nobody is advocating the elimination of private research, and I think it is worth entertaining the idea of incentives for such research that don't involve monopolies for entire classes of endeavour, which is what patents have proven to be at least in software. Meanwhile, an analogous situation to pharmaceutical patents might be that of the granting of exploration rights to various oil and gas companies.

Certainly, a difference between oil exploration and software is that the rights granted to participants are clearly delimited in the former case, whereas only copyright provides a similar level of clarity in the latter case. If oil exploration rights were handed out like software patents, everyone would be drilling the same oilfields and spending a lot more time in court.

why software is different

Posted Nov 15, 2012 23:46 UTC (Thu) by dlang (subscriber, #313) [Link]

please point out ANYWHERE that I have said that patents are a good idea for software?

The conversation above was about drug research, where patents tend to be fairly narrow ('use of this compound', frequently further limited with 'for this purpose')

I think that the 'public pays, private patents earn rewards' is fundamental abuse of the system, and all public grants should include a clause stating that the results of the research should be publicly available at no cost (I would say cost of replication, but in today's world that's so close to zero that it's better to just say 'no cost' rather than leaving the door open for abuse)

People are not advocating the end of private research, but they are advocating the end to the way that private research pays off. Unless other reward mechanisms are created, that's effectively the same thing.

why software is different

Posted Nov 16, 2012 0:54 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

>I think that the 'public pays, private patents earn rewards' is fundamental abuse of the system, and all public grants should include a clause stating that the results of the research should be publicly available at no cost
That's actually exactly the case with the NIH grants.

The problem is, the distance from a promising drug candidate (a typical academical result) to a working drug is a couple of billions of dollars and 10 years of work.

why software is different

Posted Nov 16, 2012 1:10 UTC (Fri) by dlang (subscriber, #313) [Link]

In that case, the drug company should reimburse the government for the research costs when they decide to take on the rest of the process.

But the typical case of 'public funding, private patents' is not in the drug field, it's in other fields where the researchers doing the research get the patent in their name and then sell it.

whoever funds the research should get the patent, they can then sell or license it to industry for implementation.

why software is different

Posted Nov 16, 2012 1:14 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

Why? That's the task of academia - producing new results. You can download NIH result papers and go on creating your own drug in a garage. It's not uncommon that several companies might try to use a lead from the same paper.

And the final drugs rarely look anything like the first version of drug.

why software is different

Posted Nov 16, 2012 11:29 UTC (Fri) by pboddie (guest, #50784) [Link]

On the topic of different incentive structures, I came across this explanation of the division of financial responsibilities for oil exploration in the Norwegian sector of the North Sea. Again, it's not exactly analogous to either software or drug development, but there are parallels (and a lot of money involved).

why software is different

Posted Nov 16, 2012 11:08 UTC (Fri) by pboddie (guest, #50784) [Link]

please point out ANYWHERE that I have said that patents are a good idea for software?

I didn't think I claimed that you did.

People are not advocating the end of private research, but they are advocating the end to the way that private research pays off. Unless other reward mechanisms are created, that's effectively the same thing.

I was just saying that there might be something other than patents that also rewards people and even works better than patents. This is worth exploring because even if we eliminate patents on software right now, we'll end up having a discussion in a few years about why software isn't subject to patents, and then we're back where we started. By widening the discussion to the general topic of rewards for discovering things, we can acknowledge that patents do not themselves have a monopoly in this field, either.


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