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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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August 1, 2005

The Difference Between Software and Drug Patents

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Posted by Jason Schultz

Brookings Institute Scholar Ben Klemens has a nice little OpEd over on BI's site about patent reform and why there is an important difference between software patents and other kinds of patents:

However, the key distinction between a drug and a method for using a computer is that few of us own the equipment or have the desire to manufacture drugs. Meanwhile, computers are ubiquitous--and as a result, so is software authorship. If you are reading this at work, there is probably someone in your building writing software right now: perhaps in the form of a company web page, or a script to make the accounting database work better. Thus, a patent on a drug creates potential liability for those companies in the pharmaceutical business, while a software patent creates potential liability for any company with its own website or software customizations, regardless of its business.

Comments (3) + TrackBacks (0) | Category: IP Abuse


1. Dr. wex on August 1, 2005 3:35 PM writes...

I couldn't disagree more with the quoted bit (though I agree with much of what's in the editorial). The problems with software patents have nothing to do with the ubiquity of software authorship. Nor is anyone even remotely likely to get prosecuted for writing a macro program - that's a lame strawman. Problems with software patents come in two flavors: practical and conceptual.

The practical problems with software patents include crappy-to-nonexistent prior art requirements (compare prior art citations on drug patents vs those on sofware patents), overworked examiners not trained in the art, and an industry with wide disparities between established firms and startups that are expected to compete in the same marketplace.

Conceptual problem with software patents have to do with the meta- and mutable nature of software. The computer is the first tool I can think of that has no purpose unto itself - it's only purpose is to emulate other things. Unlike many other fields, software presents problems telling the difference between process and data that the process operates on. Virtualization technologies make it difficult to be precise about machine structures and limitations. Software is reflexive in ways that few other technologies are. Programmable hardware blurs the program/machine distinction. I don't think patents were designed for this kind of beast and as a result many (most?) software patents are poorly written as they try to shoehorn this mutable software stuff into the language of rigid mechanical machinery.

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2. jtw on August 2, 2005 11:54 AM writes...

One of the best things I've heard is that IP in the pharmaceutical world is about incentives - given that you're risking about $600M (baseline) on a clinical trial, and your success rate is about 1 in 10, you need to know that you'll be able to recoup not just the cost of the trial at hand, but the other nine failed trials.

Whereas IP in software is more about leverage and lockout. That's something that gets used for good (see GPL and GNU/Linux) and for bad (see SCO) purposes in the copyright sphere. Patents are another ball of wax entirely - you don't spend hundreds of millions of dollars to create most software applications, and you don't need lockout monopoly rights to recover costs like in the drug cases. It's a jackhammer on a penny nail...

My $.02, opinions are mine, not my employer yadda yadda.


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3. Branko Collin on August 3, 2005 6:35 PM writes...

"Nor is anyone even remotely likely to get prosecuted for writing a macro program - that's a lame strawman."

If we are talking about prosecution--that is, what follows after committing a crime--, and if the US are a somewhat developed and civilized country, it should not matter whether someone commits the crime at home trying to write a letter to aunty Jill or at the office trying to make millions. Lady Justice should be blind to that: a crime is a crime.

But perhaps you meant "sued"? Patent law is (mostly) civil law AFAIK. Even then Klemens' argument is not a strawman. The author writes (this, by the way, is not from the quoted bit): "When you use the Record Macro feature of your word processor, you are writing a computer implemented technology which may infringe a patent--and if you put that document online, you are distributing your infringing technology worldwide." Nowhere does he talk about getting sued. And indeed, software patents are often used to threaten with sueing, not to actually sue. What's more, letting people write infringing macros breeds disrespect for the law--something which the author also touches upon.

You may claim that IP law was never intended to stop the home user--tell that to the thousands that were and are being sued by the RIAA and MPAA.

"The practical problems with software patents include crappy-to-nonexistent prior art requirements (compare prior art citations on drug patents vs those on sofware patents), overworked examiners not trained in the art, and an industry with wide disparities between established firms and startups that are expected to compete in the same marketplace."

These are problems that are related to all patents, not just software patents.

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