Richard Stallman has written “an excellent explanation of why software patents are a very bad idea”:http://www.guardian.co.uk/print/0,3858,5219892-111020,00.html for the Guardian.
Go read that if you want an easy, literary-based explanation of the problem. Stallman uses the example of Victor Hugo’s Les Miserables to explain, so if that tickles your fancy, don’t bother reading this post any further.
What I’d like to do is setup a similar analogy for the pharmaceutical world…
Dad and I have had a good number of conversations on this topic, since Eli Lilly tends to view patents very favorably. Patents are absolutely essential to the pharmaceutical industry–without them, there would be very little commercial production of medicine because there would be no financial incentive.
The problem is when patents begin to apply to ideas, rather than actual inventions. Used to be that patents were only applied to mechanical inventions, but with the emergence of software integrated into machinery in the past several decades, that distinction has vanished.
One of Eli Lilly’s best selling drugs is Prozac, or more specifically, the chemical compound known as Fluoxetine. Fluoxentine is part of a class of chemical compounds known as selective serotonin re-uptake inhibitors (SSRIs). SSRIs are all based on the same basic idea–prevent the brain from reclaiming serotonin. Serotonin is a nuerotransmitter that is generally lacking in cases of depression. By preventing the brain from reclaiming serotonin, the levels are raised back up, hopefully preventing depression.
The key here is that SSRIs are based on an idea, but you can only patent a specific chemical compound that implements that idea.
If pharma patents worked like software patents, the first company to create an SSRI could patent the *idea* of SSRIs, thus preventing any other company (including Lilly) from creating an SSRI. It wouldn’t matter if the SSRI created was an entirely different chemical compound from the original patented one; as long as it was still based on the same idea, the creator would probably need some good lawyers.
For folks used to traditional patents, the idea of patenting an idea may seem absurd (“but what about prior art?”, etc.), but that’s what happens in the software world. Part of the problem is lack of experience/knowledge on the part of the patent examiners–distinguishing between an algorithm (an idea) and two different implementations of that algorithm (i.e., the chemical compound of the coding world) requires quite a bit of programming knowledge. That’s just skimming the surface as to why horrible software patents slip through.
The reality is that they do slip through and thus we end up with patents for:
* Buying something online with a credit card
* The progress bar
* Multimedia
* Browser plugins
Entire companies are being created for the sole purpose of patenting some basic technology-related idea and then suing any software companies that might violate the patent. The startup funds go towards the lawsuits; under the current legal system, the potential damages and future licensing fees are lucrative enough to justify the initial investment. Even lawsuits based on patents which are later invalidated by the USPO can bankrupt smaller startup companies.
The looming threat to smaller startups should not be understated, as these startups are typically the engines of innovation in the American economy. They will be the Googles and eBays of tomorrow, and in a global economy, innovation is the chief advantage the American economy continues to hold over the rest of the world.
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