The public cost of a patent is the monopoly it provides. The public benefit is that the invention is eventually released into the public domain.

Take the pharmaceutical companies as an example of where patents are perhaps worthwhile:

- It costs a lot of money to produce a new drug; high cost == high risk == unattractive field for investment. Patents lower the risk because the pharmaceutical companies know that they will be able to recoup their investment if they actually produce something useful.

- Likewise, it costs a lot of time to do the research and produce something that works. The 20-year timescale (http://law.jrank.org/pages/9086/Patents-Patent-Duration.html) of the patent is approximately in line with the effort expended.

- It is comparatively easy to tell if a drug works.

- After the patent expires, the drug is probably still useful...e.g. aspirin hasn't stopped being a good painkiller just because it's a commodity.

Compare this to software patents. None of the points match up:

- Production costs are zero == low risk == attractive field for investment.

- Production time is almost zero. You can submit software patents literally as fast as you can write them up.

- Most software patents are completely intangible and have very fuzzy edges. If you're a patent examiner in 1980, how do you verify that this "web browser" idea will in fact work?

- After 20 years, the patent is likely to be worthless. As a trivial example: yes, people still use GIF but JPEG and PNG are far more common.

All of these things encourage the system we have now--"throw it against the wall", patent trolling, etc--instead of what patents were Constitutionally intended to be: an incentive to grow the arts, sciences, and economy.

Actaully, I wish I could find the link, but there was a study that showed in 2007 that of all the novel chemicals, most were out of university research, and not big pharma. They tend to spend an inordinate amount of money on marketing, which is ludicrous. I mean, if you need medication, the last thing you should be doing is basing it on ads. Your doctor doesn't need asked about latisse or whatever.

All excellent points. I would add one more:

In the case of drugs, the patent can be chemically specific. It's easy to tell whether another drug infringes.

Software patents are sufficiently vague that it's hard to tell what they cover. Which has a chilling effect on people making software. How do you know whether you'll be sued?

You (and PG in one of his essays) think this way because you're looking at the end product. But patents aren't about the end product, they're about the human process that leads to that product and its incentives. People come up with algorithms and other mathematical constructs without the need for special government incentives.

It may be true that people come up with algorithms and mathematical constructs without patents as an incentive, but I still don't see how the same incentives (patents) are necessary for people to build novel material goods if they are not necessary for people to build novel software goods.

What I'm left wondering is, what is it specifically (for people who hold that some patents are OK, while software patents are not) that makes software different?

Edit: I just saw dstorrs comment, and I think what he seems to be implying is that patents on software are not comparable to other industries because of the relatively lower barrier to entry, and the relatively higher cost of enforcement. I think that this is a good argument for holding software patents to different standards (i.e. shorter statute lengths and more specificity in the application) than pharmaceuticals, etc. but I still don't see how patents are entirely misguided in the case of software.

Software is different because it's considered a creative work and therefore falls under the veil of copyright. Copyrights protect each implementation individually, and this is ample protection.

Patents generally cover a whole _invention_, not an implementation, and each implementation requires a license from the patent holder. So, in the case of the web browser, had Mosaic or Netscape patented this concept every competitor would be forced to obtain a license from the patent holder and open-source or free browsers would be impossible. Patents in the case of software therefore have a chilling effect and prevent significant competition for a long time.

Pharmaceuticals only get patented by publicly divulging their significant modes of operation; a software patent outlines only vague processes, like the i4i patent that's brought this whole thing up.

Software is also merely a high-level implementation of an algorithm. Algorithms are non-patentable and all math is discovered, not invented; this has been settled earlier, and is the reason that algorithms alone are not awarded patent protection. Software is no different.

In software, the implementation details are significant enough that patent protection is not only undesirable but in fact crippling to the industry as a whole. Take a look at some software patents; in fact, take a look at i4i's patent specifically. It's applicable to basically that edits XML documents, whether it be a word processor, an IDE, or anything else. These things are way too vague and they encroach on prior and future art in a hugely negative way.

See http://w2.eff.org/patent for a list of some rather absurd software patents granted by the USPTO; even if we ignored everything else and assumed that software patents were OK for things that deserved them, the people in charge of patents don't have anywhere near the kind of knowledge necessary to make intelligent decisions.

Those are my reasons for opposing software patents. It makes development a complete minefield, and only the big guys can afford to wade through that. I just have to hope that I don't do anything too successful until the patent laws are revoked or until I make enough money not to care.