Patenting the Cure for Cancer

by on April 2, 2008 · 5 comments

A great comment by Lewis Baumstark:

The current software patents landscape is more akin to Bayer creating a cancer curing-drug and instead of getting a patent on their specific formula, they get a patent covering the general ability to cure cancer. Meaning anyone else who creates a different drug to do the same thing would be infringing.

Quite so. To unpack this analogy a little bit, the analog of the “specific formula” is software’s source code. If we wanted to create a sensible software patent system, the way to do it would be to require software companies to disclose their source code in their patent applications, and then grant patents that prohibit other companies from duplicating that source code, just as drug patents prohibit companies from exactly duplicating drugs. Except that, obviously, source code is already protected by copyright law, so such a patent system would be totally superfluous.

Instead, we have a system where a company with no employees and no products can claim a de facto monopoly on the ability to transmit email wirelessly and use it to extort hundreds of millions of dollars out of companies that are producing useful products. Nobody claims that RIM literally stole the technological designs NTP claimed in its patents. Rather, all NTP claimed was that RIM’s technology fell under the broad category of functionality claimed in NTP’s patents. “Curing cancer” might be a bit broader than “transmitting email wirelessly,” but not much.

Likewise, I have yet to see any evidence that the banks being sued by DataTreasury literally copied DataTreasury’s designs. Rather, DataTreasury’s patents are so broad that it’s simply impossible to develop a digital check-clearing system without running afoul of the patents. I don’t think there’s any serious policy argument for allowing companies to claim such broad patent monopolies.

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