I think patents are fine, but the criterion used to award them are strange.
We only need a simple criterion: absent this patent, would this technology have been invented anyway (within a reasonable timeframe)? Yes, then don't award a patent. It's a bit subjective, but so is "substantiality".
By this criterion, would a certain drug have been invented if it was not expected to receive a patent. That is usually a clear no. It takes a lot of money and resources to develop new drugs but little to copy, therefore companies would stop doing research altogether.
Another example, would e-ink displays have been invented if it was not rewarded a patent? Absolutely yes, by multiple independent parties probably, thus should not deserve a patent.
I don't think there is a single software patent that would pass this criterion.
> absent this patent, would this technology have been invented anyway (within a reasonable timeframe)?
This would be the criteria of non-obviousness that already exists in US patent law. The problem is it seems like lots of patent agents seem to approve what lots of people "skilled in the art" would consider obvious (one-click checkout? shopping cart? really?!). Which then requires some level of litigation to have a lot of people "skilled in the art" to testify of the obviousness of the patent.
IMO a lot of these patent issues we see today could be solved if we had more patent agents and more skilled patent agents, but then we've got a ton of otherwise smart engineers and other kinds of people spending their days reviewing patents instead of actually making new things.
> Another example, would e-ink displays have been invented if it was not rewarded a patent? Absolutely yes, by multiple independent parties probably, thus should not deserve a patent.
Tell us, how exactly do you think e-ink displays work? Because everytime I hear someone say exactly what you've said above, I've asked them to explain it and you know what, they talk about the rotating ball gyricon which is Xerox PARC's patent, or they talk about microcapsules (often googling it as they try to respond to me). I like to be specific since I work in the display industry and if you look at my comment history you'll see how disappointed I am with the lack of actual understanding of the technologies involved and the blaise reference to patents without knowing anything about what's limiting progress in electrophoretics. In short, physics is what is limiting it.
I often demonize pharma because my partner works in that field. People in that field are often blind to its faults, like perverse incentive structures and Byzantine regulatory processes that often harm more than help. Pharma companies' R&D budget is dwarfed by its marketing and expenditures on financial games like stock buybacks, so this talk of recouping costs doesn't hold much water in my opinion.
If something is necessary but unprofitable in the near term, the early research is often already publically funded, like the mRNA vaccines.
Mm, no, you're right. But they'd spend a lot less on research, they'd have to. I don't claim to know a lot about that industry so I may be wrong, it's just an example. Can't think of an example where patents are more defensible though.
We only need a simple criterion: absent this patent, would this technology have been invented anyway (within a reasonable timeframe)? Yes, then don't award a patent. It's a bit subjective, but so is "substantiality".
By this criterion, would a certain drug have been invented if it was not expected to receive a patent. That is usually a clear no. It takes a lot of money and resources to develop new drugs but little to copy, therefore companies would stop doing research altogether.
Another example, would e-ink displays have been invented if it was not rewarded a patent? Absolutely yes, by multiple independent parties probably, thus should not deserve a patent.
I don't think there is a single software patent that would pass this criterion.