Comment by tombert
2 days ago
I don't disagree, though I would argue that bullshit like "design patents" blur that line somewhat.
Even within patents, you're not supposed to be able to patent a "fact", which is why most math is non-patentable, and it gets into kind of weird territory when you get into stuff like algorithms: is an algorithm part of mathematics and therefore a fact and therefore non-patentable? or is it closer to an invention and engineering, and therefore should be patented? Or is coding "creative" enough to where we should actually be copyrighting algorithms?
I have no idea the answer to that question, or where the line should be drawn (though I gravitate towards the "math" side).
I don't know where I'm going with this; intellectual property law is weird.
Yeah, as in all things, the categories start to blur at the edges. Most algorithms seem like mathematical discoveries to me, whereas the source code for a piece of software has pretty clear corollaries to copyrighted works like novels (including passing the test that I propose: it could not exist without it's creator).
I kind of think that patents should not exist. I'm not a scholar in the area, but I am not aware of good evidence that, without patents, we would be bereft of the many inventions of human history and especially the last 200 years. And actually, the open source movement demonstrates that there is a very strong human impulse that will create and invent things without material recompense. My reading of patent history is that people who were inventing things anyway wanted a way to profit from it, not that there was a lack of invention and patents were arrived at as a solution to that problem.
Perhaps someone could object that companies are responsible for a lot of invention and they need to be incentivized in a way that individual inventors do not. But I'm not convinced that making a better mousetrap isn't enough of an incentive. After all, companies spend an incredible amount of money on sales and marketing (usually a larger line item than R&D on a company's income statement) and neither of those gives you a legally enforced competitive advantage.
I think the best argument for patents is to encourage drug discovery, since the costs are enormous due to the testing requirements. But if the main cost is in testing, then perhaps the solution is to require that copycat medications also go through the testing process, at least for some period of time. Or just have patents for drugs but not for other things. Or just have the government engage in drug discovery and validation directly (normally I'm against the government doing stuff, but I'm not convinced that the lack of a profit motive would be worse than the presence of a profit motive when it comes to drug discover).