Gavin R. Putland,  BE PhD

Friday, March 31, 2006 (Comment)

The essential difference between patents and copyrights

Why are software vendors racing to protect their ideas with patents, in addition to the usual copyright? Because, while the independent development of the same code or similar code is not a breach of copyright, the independent reinvention of a patented idea is a breach of the patent.

This rule discourages innovation, because anyone who uses an independent idea must either risk being sued for breaching someone's patent, or devote enormous resources to searching the patent literature for any patents covering the idea — and still risk missing something.

It also rewards trivial contributions. If you invent something that someone else would have invented next week, you have advanced the state of the art by one week, and your reward should be proportionally modest! But patent law makes a week as good as a century.

Patentable inventions are supposed to be “non-obvious”, whatever that means. Why not let the test of non-obviousness be the lack of independent reinvention? Why not let independence be a question of fact to be decided by the evidence — just as it is with copyright?

Besides, defenders of patents like to draw an analogy with copyrights. Why not make the analogy valid?

[Letter rejected by PC Authority. Posted here Aug.18, 2012. See also “Make patents like copyrights”.]

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