I agree with this, but my key question is: why stop at software patents?
Many of these arguments also apply to all patents, not just software ones. Is there a compelling argument to keep any patents at all? They seem like a weird throwback to some past society where reclusive inventors spend all their time tinkering and inventing things.
Patents encourage innovation by rewarding creators. We wouldn't have vaccines without some form of protection for scientists and their backers.
The reason to ditch software patents is copyright already protects software. Copyright allows you to decide how your code is distributed. Software patents restrict innovation in a manner that was never intended to be possible.
Not who you are responding to but yes, looking at the history of MRNA vaccine research I believe that these vaccines (MRNA specifically) wouldn't exist without the massive payoff that could come from a patent.
edit: my comment went against the worldview of some ideological drones and they decided to downvote me instead of actually responding.
There is a reason that MRNA was developed in countries with strong IP rights and countries without those rights are relying on century old technology to develop their vaccines.
America has produced by far the most medical advancements in the modern era.
What people don't recognize about the lower cost of drugs in countries like Canada is that they effectively have government price controls. If we were to do the same here, it would greatly limit R&D into new treatments.
However, there are of course other ways to reduce cost to the consumer without harming the rich ecosystem of biotech.
Important to understand this dynamic when adjusting laws, because it would be very easy to totally kill medical innovation
Patents are an exchange. I share my invention, you provide protection so I can recoup the costs of creation.
Without them, there is little incentive to create, and much more incentive to rip off someone else's work. The result would be a reduction of technology that would put luddites to shame.
If we got rid of the patent system today, there would probably still be vaccines 5 years from today because of the prior investment. But, in 100 years, the only people who could get vaccines would be the ultra wealthy, and 100 years after that we would lose the knowledge to create a lot of new technology because the old tech never sufficiently made it into the public sphere.
Without patent protection, there's very little financial incentive to invent new pharmaceuticals.
Anything you come up with could be copied and produced for pennies on the dollars by any number of companies. Of course, the cost to produce most medicines is quite low.
So you have to invest a high fixed cost in R&D, at great risk of failure, and in the end you don't recoup any of that cost.
When patents expire, you'll see many generics come onto the market at reduced costs, and cost to consumer goes down.
Some other system could probably work, but free market R&D would fail without protections to profit from creations. I suspect trying to replace the free market system with some quasi-public one would not produce as many innovations.
"When patents expire, you'll see many generics come onto the market at reduced costs, and cost to consumer goes down."
This assertion is simply not true. A prime example - Insulin is 100 years old. Those who need it are paying sky high prices due to corporate greed, and many simply can't afford it. No competition, no affordable option. People are dying due to this greed.
You’ve picked one large-molecule therapeutic which has significant variations between different products and much higher production costs. The vast majority of drugs are nothing like it, and they follow the pattern of a dramatic drop in price once generics can be legally sold.
In the case of the pandemic, people have other incentives than financial.
I don't agree, it seems to me that almost nobody who innovates does it for money, people do it for fame, curiosity, desire to fix a problem. (All progress depends on unreasonable men.) Rather, it's people who organize innovators who do it for money, and the question if they need to be renumerated in patents is legitimate.
The innovators in pharmaceutical research need large amounts of money to run the studies to show safety and effectiveness of their inventions, to say nothing of the even more hit or miss discovery process. It’s conceivable we could pay for that in a different manner than patents and high US drug prices, but that cost can’t just be handwaved away.
And those companies with the capability to do it wouldn't have existed.
There needs to be a mechanism to profit from the R&D. Point blank. It doesn't have to be through patents... We can create a new system if a better one is devised. But fundamentally, nobody will invest billions of dollars into a venture that is guaranteed not to be profitable.
> The alternative is fully public funded research.
So then you agree with me completely that these companies would have existed and would have researched the covid vaccine, because literally as I just said before, the government offered a bunch of money for it, which is "public funded research".
Glad you agree with me entirely, but I guess also just wanted to restate my argument slightly, for no reason.
I don't agree at all. If the patent system didn't exist, there would be no companies with the capability to develop the vaccine. Because there's no profit motive.
The government would be willing to fund a vaccine, but there would be no capability to create it.
What is difficult to understand about that?
Do you think we could create a new vaccine within a year if there were no companies with multi billion dollar R&D teams?
Could we build iOS or Android if there were no software developers?
I very clearly laid out why, even if there were a will to publicly finance a covid vaccine, the capabilities to do so wouldn't exist in a world where pharmaceutical companies couldn't profit from R&D. You can't finance towards an outcome if you have no structural capability to reach it.
You know, the last few hundred years biotech companies have spent developing the capacity, know how, ability to invent new drugs and vaccines? All of which was supported by a patent system allowing them to profit from their creations.
What part of that is difficult to understand? Do I need to make it clearer somehow? Is it too challenging to understand the nuance of structural capability vs financing something in the moment?
Ok, now please elaborate on how the research and investment that was needed to develop the polio vaccine in any way resembled the amount of research and investment required for modern day vaccines?
The difficulty with this is choosing what to fund in what amount. Bureaucracies are quite bad at this.
Patents solve this by using the market. If you patent some garbage, nobody buys it and you make no money. If you invent something ingenious that everybody wants once it exists but nobody else would have thought to offer a prize for before it existed, you make a lot of money.
Is there is a patent for the government to have to buy? If they get to keep the patent unless the government is willing to pay the market price, you have a patent system. If not, they're doing research on faith that some unspecified money might possibly fall from the sky.
Also, now there is only one buyer. Say six different companies all develop working vaccines. Is the government going to buy all of them? What about the tenth or hundredth? If not, what happens to the company that spent a billion dollars developing a working vaccine, only to have someone else beat them to the prize by a few days?
And vaccines are something we know ahead of time that we want. How do you do a prize for inventing something you don't know you want because it doesn't exist yet?
>Is there is a patent for the government to have to buy?
There would be no patents.
>Also, now there is only one buyer.
You could also sell them to other governments, hospitals, people, etc.
>what happens to the company that spent a billion dollars developing a working vaccine, only to have someone else beat them to the prize by a few days?
It's possible for competing products to exist. Is yours cheaper or more effective than your competitors? If you wanted your money building a bad product then tough luck.
>How do you do a prize for inventing something you don't know you want because it doesn't exist yet?
How do you make a vaccine for a disease that you don't know about? You don't.
I'm not sure why you are talking about prizes. Along with just selling them normally, you could also have an unlock system like kickstarter. If you raise $x then they will release the drug, or they could kickstart the entire process. Or instead of a kickstarter they could find investors.
> You could also sell them to other governments, hospitals, people, etc.
Sell what, exactly?
> It's possible for competing products to exist. Is yours cheaper or more effective than your competitors? If you wanted your money building a bad product then tough luck.
These are existing risks. You're adding a new one: Pfizer and Moderna each create a working vaccine. The government buys one of them to give away for free, so the other one makes zero dollars. Normally they would each take an equal share of the market.
> How do you make a vaccine for a disease that you don't know about? You don't.
Some forms of cancer are caused by a virus. It's possible to vaccinate against them. We did not know that a century ago. Two centuries ago we didn't even know that vaccines were possible. What don't we know now?
That patents expire is not a bug, it's a feature. Patents are an exchange for temporary protection.
> I also don't see the patents benefiting researchers anymore, rather than some corporate middlemen.
The researcher can't make money without some form of protection. You could spend 20 years building something and have it stolen by a huge company with no means to recoup your costs. Removing patents would immediately benefit the biggest players, entrenching existing monopolies.
> You could spend 20 years building something and have it stolen by a huge company with no means to recoup your costs. Removing patents would immediately benefit the biggest players, entrenching existing monopolies.
But why is the big company stealing it? Currently, it makes sense to steal it because the patent protections make it seem as if the idea itself is valuable (and can be a private property not commons). But in the world without the patents, what is valuable is the physical implementation, or rather, the coupling of both.
It has been pointed out that you have many cases in free market economy with a similar problem. iPhone, for example, has very little innovation in it, it's just an idea executed well, based on past things like Palm Pilot for example.
It seems to me, to have fair patents, you need to assume that value of everything can be broken to additive pieces - value of this idea, that idea, and then the value of the materials and energy from which it is built. But this is really hard, because things have value that also comes from combining these things. (In general, this is a problem with free market with respect to labor too, because you cannot really meaningfully determine what contribution of different types of labor is more valuable for the product to arise, but at the same time, the people need to be remunerated for the labor somehow.)
On the other hand, in the world without patents, we assume that value of everything can be broken to little pieces (not so valuable by themselves) that are added by individuals in small amounts. So if all innovation is in the commons, no need to toil for 20 years to invent something. You build a little piece, add it to the pile, and everybody benefits because at the end of the day, you take lot more from the pile than you put in.
> But why is the big company stealing it? Currently, it makes sense to steal it because the patent protections make it seem as if the idea itself is valuable
It makes no sense to steal when the owner is likely to sue you for doing so, thus invalidating all of your work. It is also not a good business practice to steal.
> in the world without the patents, what is valuable is the physical implementation, or rather, the coupling of both.
Governments should probably just buy good patents and release them into the public domain. Not with eminent domain or anything like that, just offer to pay the market price for the patent. Then you solve this problem because the inventor gets their reward one way or the other but you don't have these really good inventions going ignored for twenty years because the market for the technology at the monopoly price is 2% of the size it is in the public domain.
Preposterously, we have a system that does the opposite and encourages universities to file patents on publicly-funded research.
> Governments should probably just buy good patents and release them into the public domain.
Patents expire after 20 years. There is no need to buy them. You just invite more corruption if you tell the government to pick and choose which ones are "good".
The corruption problem is the same one a with NIH grants and everything else, it's just doing it after the fact in exchange for the patent. You try to minimize the inefficiency as best you can, but even when it's not zero it can still be smaller than the inefficiency from waiting for the patent to expire.
A single patent can be bought for any amount, such as for life saving vaccines. I wouldn't like to see that price inflated by tax dollars, thus further reducing competition to where vaccine production becomes state-owned. Good thing the public will never go for this so I don't need to worry.
> I wouldn't like to see that price inflated by tax dollars, thus further reducing competition to where vaccine production becomes state-owned.
The entire point is that the patent goes into the public domain. The government pays money to cause it to not be patented anymore.
> Good thing the public will never go for this so I don't need to worry.
What does the public have anything to do with it? It's Congress that makes the laws. There are surely some companies with lobbyists who would like to make some tax dollars. Let a bit of corruption do something good for once.
It's an interesting idea but would probably have harmful second order effects — a government sanctioned patent gold rush.
Abolishing the root cause would be better. And if this was done, then yes, government buyouts and release of existing patents would be fantastic, where the release would spur growth.
At 63–75 years, programmable general-purpose computers and networks are so new that it’s still possible to claim the most obvious solution to many problems simply by being first to think about them. USPTO’s bar for what is “obvious” is skewed towards older subjects with a lot more written and indexed prior art for an examiner to cite, and doesn’t weigh likelihood of easy reinvention.
And now there’s enough money at stake to trigger a land rush to fence off entire problems using solutions that just don’t merit protection.
> I agree with this, but my key question is: why stop at software patents?
Because the key argument is that math is not patentable.
Software patents are relatively uniquely expressible amoung patents as mathematical conjectures.
Why are software patents more expressible in mathematics than e.g. mechanical ones? The physical laws that govern a mechanical device are expressed mathematically.
I'm actually more ok with pure math patents than software patents.
If someone constructively proves p=np then they deserve some term-limited profit taking.
Getting a monopoly for being the first pos to mail some legalese to the right government office about clicking a button once to order something for delivery is both not math and not beneficial to society.
The problem is software patents is not that software is math. The problem is software patents is that most patentable software is obvious to anyone without severe brain damage, and no one in the legal establishment has historically had any clue how to assess whether some idea in software is non-obvious.
There are still reclusive tinkering inventors today who need to make a living!
It's very hard to otherwise compete with an established company who can copy your brilliant idea, scale, and distribute it way faster and more cheaply than you can.
In 2013 it cost $33,000 to file a software patent: a startup I worked for was trying to file one. There's no way a starving tinkerer would be able to afford a patent.
But assume s/he did afford one.
Now comes the theft. Amazon steals it, and now our tinkerer needs to cough up millions of dollars to go after a one-trillion dollar company. It lingers in courts for decades. Even pro-bono legal advice would eventually give up. Futile.
Patents exist only for companies to wage war for monopolies.
You're assuming that once you have a patent, you're protected. When in fact, you still need capital to defend your patent in litigation. It's turtles all the way down.
That's better than no protection at all. If you have something really innovative you might be able to get a loan to protect it, or sell or lease it to companies that would help defend it.
The reality is that in software, relative to the vast armada of the patent thicket that could be employed against you, a single patent affords little protection.
Like elsewhere [1], this thread's context was discussing the usefulness of all patents, and you are talking about software patents. I gather most people in this forum agree that software patents are no good.
I believe the patent thicket argument holds and has merit, whether you restrict the context to software patents or enlarge the context to most industries.
Let's also not forget the broader context here, which is software patents.
And it turns out, oops, your thing infringes upon 62 other patents that another company happens to hold. You can either desist or have a nice cross-licensing deal where they get to use your patent for free in exchange for now suing you.
This comment is both true and not. Absolutely right that you can’t count on a patent to magically protect you without litigating (or at least credibly threatening to).
It’s not true that you will always need to put up the money yourself. If the patent is sufficiently valuable you can enter into joint ventures, or contingency agreements to have someone else bankroll the fight.
Having a large company infringe on a patent also makes it a desirable purchase for any other company with a bone to pick with the infringer.
By “turtles all the way down” I understood you to be saying it’s an endless (or hopeless) process for a small inventor to make use of the patent system. I don’t believe this is accurate.
For the most part, even tinkering inventors are simply forced to sell their big idea / invention to a company at less than face value. Not many have the capital to do anything with their inventions.
The compelling argument, rewarding innovation, is the same as it was in 1789, in the United States Constitution, Article I, Section 8, Clause 8:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Above comment was addressing all patents, not software patents specifically.
I think everyone here is in agreement that software patents are harmful and not what was intended by the patent system. Software is already protected by copyright.
There is no principled reason to stop at software patents, they are literally theoretically equivalent to any other patent. Industry has already abandoned them in any case.
In software, we’ve already returned to the state that patents were designed to avoid. Everything of value is treated as a trade secret. In several domains of computer science, virtually everything that is state-of-the-art is never published and is instead slathered in NDAs. And for good reason, patents on computer science have been effectively unenforceable for decades. So instead, no one publishes.
This isn’t speculation, it is official policy in organizations I work with. The end state is that public computer science is mediocre compute science. I’m agnostic about it since it doesn’t affect me either way, but I recognize the suboptimality.
Software is not unique in this regard, all patentable subject matters work the same way. Abstract designs are patentable. A specific reduction to practice of that design is copyrightable. Both are independently licensed in practice regardless of the subject matter.
It works this way in chemical engineering, for example, where I have some experience. You license the process and the implementation of the process independently, because they are not the same work; the patent in the former and the copyright in the latter.
Sure, algorithms also receive patents in other fields. The point is that algorithms were not intended to be patented, not that algorithms are unique to software. We say "End Software Patents" because that's an easy way to see how the system has gone haywire.
If you need to invest millions of dollars for some pharmaceutical pill, you probably want to have a return on investment for that. The only way to really have that is your exclusive right to sell it, or license it out.
If you can't have that right, you won't invest those millions of dollars.
But software is not like that, because innovation is mainly driven by building on top of small things, not doing a crazy expensive research project.
So industries are different, and I do see the benefit for some.
I like the initiative. Why tie it to the free software movement?
> Software should be free
This is unnecessary. Copyright allows us to decide how to distribute software we create. By including "software should be free", it sounds like they want to abolish copyright as well.
Parent is probably referring to the fact that this website was created by the FSF, hence they are motivated to tie ending patents to the free software movement.
Oh I didn't see that. Well this is dead in the water then, in my opinion. Using verbiage that sounds like abolishing copyright will never fly anywhere outside a very small subset of software folks.
Then it doesn't make sense to include that statement on the home page. That statement never held water for me. I do think we should look at what it would take to ditch software patents. Now that I see this page is from the FSF, it makes sense. I know RMS will never give up on forcibly making all software free.
> GNU/Linux
Free software such as the GNU/Linux and FreeBSD operating systems were developed without software patents. 91% of the top 500 super computers run GNU/Linux.
This is misleading. Linux has all sorts of stuff in it that used to be under patent protection but isn't anymore because the patents expired. The entire argument for patents is that they incentivize both the creation of new things and the public disclosure of them, with the idea that eventually they will become part of the public domain. There is a complicated cost-benefit analysis here that has been studied by academics for years, which the FSF just ignores. This is fine if you view this as an advocacy piece, but not fine if you want to actually learn something about the issue.
Just to say more on this quickly, the relevant inquiry is not "does software progress without patents, yes or no?" Obviously it would. But the relevant inquiry is whether we have made more or less progress now than we would have had software patents not existed for the last 70 years.
For what it's worth, I tend to agree with the ultimate conclusion that software patents today do more harm than good. But if you want to convince policy makers, you have to address the issue on a less superficial level. And that means actually acknowledging the other side's arguments and rebutting them with evidence or counterarguments.
What, precisely, are “software patents”? It is a suitcase term that includes unrelated things. Technically, it tends to conflate business method patents and algorithm patents, which have different legal rationales. Most egregious complaints are against business method patents that are largely unenforceable anyway. Algorithm patents are enforceable globally because they are directly reducible to electronic circuits, and electronic circuit designs are patentable and treated as equivalent.
The concept of IP is built on top of convenient legal fictions. It was never intended to be consistent. Nonetheless, it recognizes the implications of the cost asymmetry of generating IP versus copying it. There are no trivial economic solutions to the optimization of IP generation, it is an extremely difficult theory problem.
The “Software is Math” is both poorly reasoned and probably not desirable.
I think the vast majority of us will benefit from software continuing to be classified as creative works so we can use copyright law to either protect commercial interests and/or as the underpinning for open source copyleft.
The concept of "illegal numbers" is indeed quite interesting when you consider the countability of Turing Machines.
Lemma 1: The computation performed by any program or function (algorithm) operating on a Turing Machine can be represented by an initial Turing Machine state and the rules of turing machine computation
Lemma 2: There are countably many turing machines
Lemma 3: Therefore, a unique integer can be assigned to each Turing-machine program that could ever possibly exist.
Lemma 4: All implementations of a function, regardless of language, can therefore be concisely and uniquely represented by a particular integer.
Contradiction: Implementations of a function can be copyrighted, and yet integers cannot.
Contradiction: Abstract algorithms can be patented, and yet integers cannot.
Computer programs and algorithms are very akin to numbers. Most of them are useless, they don't perform any useful computation, many of them are not "correct", and most of them never even halt, most likely. However, there are certain "interesting" numbers that have useful properties due to emergent properties of the mathematical systems in which they exist. This is highly akin to, for example, prime numbers. Can you patent a prime number? Well, I can patent computer program 389355935, and just by giving you that number, I've given you all the information needed to implement that particular Turing Machine.
edit: actually per the sibling comment, this is not true!
There are not countably many possible books that could ever exist.
Therefore, I can't tell you "I just wrote book 394343" and have that convey any useful information. You can do that with computer programs.
Computer programs are integers. At least for Turing Machines. "Useful" computer programs are like "primes" or other "interesting numbers", they are scattered around the (integer) number line and they need to be discovered, but they are emergent mathematical properties of the system, not novel innovations. The innovation comes from deciding that particular computation is useful - like primes can be used as a basis for cryptography.
Cryptography is patentable. The primes that go into it are not. Those are just numbers that happen to have some useful property for this application.
> There are not countably many possible books that could ever exist.
A book is a sequence of characters c_1,...,c_n where each c_1 comes from a finite set.
The set of all books is definitely countable.
> Therefore, I can't tell you "I just wrote book 394343" and have that convey any useful information.
True.
> You can do that with computer programs.
But USPTO won't give a shit. Go ahead and compute some Goedelian encoding of your program, file it, and let me know how that goes. You have to convey useful information about how the program behaves.
> Computer programs are integers
I mean at the end of the day a book is just a shitload of bits you're streaming to some printer.
You could number all books. If your alphabet is 100 characters. The first 100 books would be 1 character long. The next 100^2 books would be 2 characters long so on and no forth.
I think lemma 4 glosses over the immense variety of ways computation can be expressed in higher level languages.
At one end of the spectrum is source code that’s so poorly written it’s practically impossible to understand or edit. OTOH, well written code with good abstractions can make changes trivial; it can also document relevant information and educate engineers.
There’s a lot of value and creativity embodied in well written applications beyond the derived object code and those qualities are (in my mind) distinct from compiled algorithms.
> There’s a lot of value and creativity embodied in well written applications
My experience writing patents:
1. Engineer/scientist writes up a very clear and understandable description of the thing. Perhaps including some pseudo-code, diagrams, or derivations along the way, but in any case definitely a high value add description rather than a dump from a git repo. On this we can agree.
2. Engineer/scientist presents this description to lawyer(s), often in the form of a powerpoint.
3. Lawyers then mangle the clean description beyond recognition.
There's something very, very, very broken about the patent application/review process. Patents should be written for makers to use and only incidentally comprehensible to legal professionals, not the other way around. After all, isn't encourage dissemination of knowledge the whole point of patents?
The quoted statement is in support of the idea that software constitutes a creative work and should continue to be be eligible for copyright, not anything in support of patents. I’m not in favor of software patents, but I believe the legal repercussions of successfully convincing people that complex applications should be treated as mathematical algorithms will be almost entirely negative.
I imagine the process of creating software patent applications probably varies by org. I agree the review process seems quite flawed, that’s supported by comments I’ve heard from several lawyers as well as high-profile screw ups, e.g failing to research prior art or applying the requirement of non-obviousness both inconsistently and sometimes incomprehensibly.
Regarding dissemination of information, yes, my understanding is patents are a trade between the public and the inventor, the inventor receives a period of legally enforceable exclusivity in exchange for disclosing the invention to the public. My opinion is this is overkill in the software industry as we already get exclusivity (and without the need to disclose): we can conceal our source code and assert copyright protections on object code. Conditions are quite different in other industries, for instance manufacture of physical devices.
Maybe folks have answers to these concerns, but every time I’ve seen that Stallmanesque messaging over the past 20/25 years or so, I have the same doubts. (And I have a full time job making FOSS at a university all day.)
From a US perspective, I’d more likely agree if we were even sorta good at handling displaced or obsoleted workers. Abolishing software patents without making a bunch of other changes would be a giant hit to the American economy and kill many productive worker’s livelihoods with no follow-up. It’s wrong to do to folks driving truck and it’s wrong to do to commercial software developers and all the other folks who make their living in that industry. Beyond that, lots of technically boring, unsexy software is super important to the world, and the open source alternatives prove that folks just don’t want to work on those problems for free, especially when there are demanding/intricate/fussy interface requirements. The number of instances in which FOSS properly catered to non-technical users with advanced use cases while delivering fantastic usability is pretty low from what I gather. For example, with the art software I work with professionally, Blender’s comparatively recent changes got them there to some extent, but anyone who thinks gimp is a usable replacement for photoshop hasn’t used either enough to make that judgement. People might even get mad you intimating there’s something to fix. Big corps like IBM won’t pay people to write FOSS all day unless there’s a financial incentive. I can picture all enterprise software now being so complicated and convoluted to install that procuring expensive services is the only way to use it. Or maybe requiring custom hardware to perform necessary parts of a process. Maybe even abandoning software altogether and making things mechanical again? Not that computing is perfectly green, but how would that work out for the environment?
I’d love to get pushback on any of this if folks have thoughts. Personally I’d love to see a world where intellectual property just wasn’t a thing… but we don’t live in that world and intellectual property laws are not the biggest barrier to achieving it. It just seems like a super naive demand that assumes software operates in a vacuum and that parity between commercial and open source offerings is even possible in our economic system.
> prove that folks just don’t want to work on those problems for free
Well, some people do want to work on such problems for free, even if not everyone does.
> Maybe even abandoning software altogether and making things mechanical again?
There are some advantages to such a thing, since computers are overused for many things. However, a computer is still useful for many things; mechanical isn't better for everything.
> Not that computing is perfectly green, but how would that work out for the environment?
That I don't know, but should probably be considered too. However, often companies put too much extra stuff in computer programs that is used even if you do not want it, which also wastes energy.
> Personally I’d love to see a world where intellectual property just wasn’t a thing…
I agree to abolish copyright/patents (although trademarks can be useful, but still there are things that should not be sued for trademark infringement, so it still needs to be fixed due to this). But, there are also ways to go part way toward abolishing copyrights and patents; Question Copyright had some ideas. Another idea would be limiting their scope so that if it has freedom then it can be ignored, or to be ignored for practical works, to limit durations, other changes, etc. Another idea would be that if you declare yourself exempt then you can neither claim copyright or patents on anything but neither can be sued or arrested for it, either. However, I think it would be much better to abolish copyright and patent laws entirely.
“Well, some people do want to work on such problems for free, even if not everyone does.“
It’s not whether anyone does, it’s whether enough people do.
In FOSS I don’t see evidence of any large project getting significant usability work for free. Firefox, likely the most popular user-facing FOSS application, it’s essentially adware via a nonprofit. Blender’s foundation has significant support from corporations. There are people working on those problems for FOSS but they’re likely paid, and that’s just not feasible for most FOSS. Also, freeness in our society can have unintended consequences— the way news organizations are forced to operate because they can’t easily be directly compensated for their work (because people expect it to be free) is a huge problem. I can’t imagine software being any different in today’s context.
Beyond that, most FOSS is entirely developer-managed and project decisions reflect that bias. To this day, many folks think the only problem with git’s interface is its users unwillingness to read the documentation. Literally zero people who aren’t software developers— including the copywriters, project managers, designers, support people, etc. who end up also having to use it— would agree.
There are certainly usability advantages with many hardware applications over software replacements but being able to use generic logic hardware to control things is a pretty huge advantage. Most folks don’t realize how resource-intensive manufacturing is. I haven’t run the numbers, but I’ll bet a few extra PCBs would equal a whole lot of software bloat. Hardware is also vastly less flexible, and as a result would probably be significantly less efficient to create. I haven’t run any numbers though.
I often advocate for drastically scaling back copyrights— especially in media and software. Their current state is absurd.
Forgive my hyperbole to emphasize the dichotomy: Abolishing software patents, however, seems like fighting America’s imperialist behaviors by demanding an immediate disarmament of the country, entirely. I’d love that if our world was in a state that could facilitate that without immediately being overtaken by China… that wouldn’t be better for anybody.
I would abolish copyright as well as patents (all copyright and patents, not only software patents). Someone might publish something or keep it a secret, but that shouldn't stop anyone else from doing it independently, either by themself or by reverse engineering an existing work.
I had the idea of a license (not yet written) which allows free use like it is in the public domain, and cannot be sued/arrested for copyright violation or for anti-circumvention or other things like that, and no attribution or copyright notice is required, but derivative works etc must be licensed by either the same license or GNU GPL 3 or GNU AGPL 3 or CC-BY-SA 4.0 (only) or later versions of GNU GPL or AGPL. These rights will then apply to patents as well as copyrights (so you can't patent a derivative work either). Someone can claim otherwise but then their claim is invalid, and only in this circumstance can you countersue. It is supposed to be effectively the same if the copyright and patent laws were abolished; if those laws are abolished the only difference is that relicensing them by the other license will not be possible, but the other rights are supposed to be the same. (The reason the limited relicensing is allowed is to be practical.)
Abolishing software patents may be a good start, though. Another alternative would be the law to be made unenforceable against FOSS (although there are probably too many difficulties in doing this properly). However, this would not be as good as just abolishing patents entirely.
When patents are used, they have the effect of making innovation twenty years behind. When used incorrectly, they are even worse.
I think complexity is an aspect that need to be considered here... I personally would feel like instead of spending 10 years working on something that will be copied so someone else takes the benefit I would much rather not to inovate and waste that time.
Similar as to how google did steal the JVM claimimg that just because they "added" "some" memory features they suddenly revolutionized the entire thing... Bullshit specially being open sourced they could have easily added those features so that THE ENTIRETY of the java/jvm ecosystem could benefit from such improvements, even in desktop, ALSO allowing what now we even came to know as "android apps" to run in other platforms since well at the end... It just a jvm. A move which by the way has become even much clearer now that they are changing the tratitional packaging format (casually) now that android apps begin running on other devises. Its clear it's intent was to get a bunch of already well trained coding monkeys by effectively copying the entire API so they could quickly ease adoption of their platform without giving back to the same jvm community that they copied/reused to make billions
Sadly the person choosen to explain this at the SCOTUS was too stupid and not technical enough to put this into words
104 comments
[ 4.6 ms ] story [ 306 ms ] threadMany of these arguments also apply to all patents, not just software ones. Is there a compelling argument to keep any patents at all? They seem like a weird throwback to some past society where reclusive inventors spend all their time tinkering and inventing things.
The reason to ditch software patents is copyright already protects software. Copyright allows you to decide how your code is distributed. Software patents restrict innovation in a manner that was never intended to be possible.
Do you truly believe this? If we got rid of the patent system 5 years ago. Do you believe no vaccines for COVID would be made?
edit: my comment went against the worldview of some ideological drones and they decided to downvote me instead of actually responding.
There is a reason that MRNA was developed in countries with strong IP rights and countries without those rights are relying on century old technology to develop their vaccines.
America has produced by far the most medical advancements in the modern era.
What people don't recognize about the lower cost of drugs in countries like Canada is that they effectively have government price controls. If we were to do the same here, it would greatly limit R&D into new treatments.
However, there are of course other ways to reduce cost to the consumer without harming the rich ecosystem of biotech.
Important to understand this dynamic when adjusting laws, because it would be very easy to totally kill medical innovation
Without them, there is little incentive to create, and much more incentive to rip off someone else's work. The result would be a reduction of technology that would put luddites to shame.
If we got rid of the patent system today, there would probably still be vaccines 5 years from today because of the prior investment. But, in 100 years, the only people who could get vaccines would be the ultra wealthy, and 100 years after that we would lose the knowledge to create a lot of new technology because the old tech never sufficiently made it into the public sphere.
Anything you come up with could be copied and produced for pennies on the dollars by any number of companies. Of course, the cost to produce most medicines is quite low.
So you have to invest a high fixed cost in R&D, at great risk of failure, and in the end you don't recoup any of that cost.
When patents expire, you'll see many generics come onto the market at reduced costs, and cost to consumer goes down.
Some other system could probably work, but free market R&D would fail without protections to profit from creations. I suspect trying to replace the free market system with some quasi-public one would not produce as many innovations.
This assertion is simply not true. A prime example - Insulin is 100 years old. Those who need it are paying sky high prices due to corporate greed, and many simply can't afford it. No competition, no affordable option. People are dying due to this greed.
"The U.S. Food and Drug Administration approved Semglee, a biosimilar form of insulin."
"As a generic, it can be automatically swapped for the price brand-name versions to help patients save money."
https://www.verywellhealth.com/fda-allows-generic-swap-for-b...
I don't agree, it seems to me that almost nobody who innovates does it for money, people do it for fame, curiosity, desire to fix a problem. (All progress depends on unreasonable men.) Rather, it's people who organize innovators who do it for money, and the question if they need to be renumerated in patents is legitimate.
Of course there is. The government would have paid a company a whole bunch of money to do it, for COVID.
There needs to be a mechanism to profit from the R&D. Point blank. It doesn't have to be through patents... We can create a new system if a better one is devised. But fundamentally, nobody will invest billions of dollars into a venture that is guaranteed not to be profitable.
The alternative is fully public funded research.
So then you agree with me completely that these companies would have existed and would have researched the covid vaccine, because literally as I just said before, the government offered a bunch of money for it, which is "public funded research".
Glad you agree with me entirely, but I guess also just wanted to restate my argument slightly, for no reason.
The government would be willing to fund a vaccine, but there would be no capability to create it.
What is difficult to understand about that?
Do you think we could create a new vaccine within a year if there were no companies with multi billion dollar R&D teams?
Could we build iOS or Android if there were no software developers?
I very clearly laid out why, even if there were a will to publicly finance a covid vaccine, the capabilities to do so wouldn't exist in a world where pharmaceutical companies couldn't profit from R&D. You can't finance towards an outcome if you have no structural capability to reach it.
You know, the last few hundred years biotech companies have spent developing the capacity, know how, ability to invent new drugs and vaccines? All of which was supported by a patent system allowing them to profit from their creations.
What part of that is difficult to understand? Do I need to make it clearer somehow? Is it too challenging to understand the nuance of structural capability vs financing something in the moment?
Pay them with public funds.
https://en.wikipedia.org/wiki/Prizes_as_an_alternative_to_pa...
Patents solve this by using the market. If you patent some garbage, nobody buys it and you make no money. If you invent something ingenious that everybody wants once it exists but nobody else would have thought to offer a prize for before it existed, you make a lot of money.
Also, now there is only one buyer. Say six different companies all develop working vaccines. Is the government going to buy all of them? What about the tenth or hundredth? If not, what happens to the company that spent a billion dollars developing a working vaccine, only to have someone else beat them to the prize by a few days?
And vaccines are something we know ahead of time that we want. How do you do a prize for inventing something you don't know you want because it doesn't exist yet?
There would be no patents.
>Also, now there is only one buyer.
You could also sell them to other governments, hospitals, people, etc.
>what happens to the company that spent a billion dollars developing a working vaccine, only to have someone else beat them to the prize by a few days?
It's possible for competing products to exist. Is yours cheaper or more effective than your competitors? If you wanted your money building a bad product then tough luck.
>How do you do a prize for inventing something you don't know you want because it doesn't exist yet?
How do you make a vaccine for a disease that you don't know about? You don't.
I'm not sure why you are talking about prizes. Along with just selling them normally, you could also have an unlock system like kickstarter. If you raise $x then they will release the drug, or they could kickstart the entire process. Or instead of a kickstarter they could find investors.
> You could also sell them to other governments, hospitals, people, etc.
Sell what, exactly?
> It's possible for competing products to exist. Is yours cheaper or more effective than your competitors? If you wanted your money building a bad product then tough luck.
These are existing risks. You're adding a new one: Pfizer and Moderna each create a working vaccine. The government buys one of them to give away for free, so the other one makes zero dollars. Normally they would each take an equal share of the market.
> How do you make a vaccine for a disease that you don't know about? You don't.
Some forms of cancer are caused by a virus. It's possible to vaccinate against them. We did not know that a century ago. Two centuries ago we didn't even know that vaccines were possible. What don't we know now?
Whether patents help or hinder innovation seems to depend on how general the patented idea is. If it's really broadly applicable, they hinder it IMHO.
I also don't see the patents benefiting researchers anymore, rather than some corporate middlemen.
> I also don't see the patents benefiting researchers anymore, rather than some corporate middlemen.
The researcher can't make money without some form of protection. You could spend 20 years building something and have it stolen by a huge company with no means to recoup your costs. Removing patents would immediately benefit the biggest players, entrenching existing monopolies.
But why is the big company stealing it? Currently, it makes sense to steal it because the patent protections make it seem as if the idea itself is valuable (and can be a private property not commons). But in the world without the patents, what is valuable is the physical implementation, or rather, the coupling of both.
It has been pointed out that you have many cases in free market economy with a similar problem. iPhone, for example, has very little innovation in it, it's just an idea executed well, based on past things like Palm Pilot for example.
It seems to me, to have fair patents, you need to assume that value of everything can be broken to additive pieces - value of this idea, that idea, and then the value of the materials and energy from which it is built. But this is really hard, because things have value that also comes from combining these things. (In general, this is a problem with free market with respect to labor too, because you cannot really meaningfully determine what contribution of different types of labor is more valuable for the product to arise, but at the same time, the people need to be remunerated for the labor somehow.)
On the other hand, in the world without patents, we assume that value of everything can be broken to little pieces (not so valuable by themselves) that are added by individuals in small amounts. So if all innovation is in the commons, no need to toil for 20 years to invent something. You build a little piece, add it to the pile, and everybody benefits because at the end of the day, you take lot more from the pile than you put in.
It makes no sense to steal when the owner is likely to sue you for doing so, thus invalidating all of your work. It is also not a good business practice to steal.
> in the world without the patents, what is valuable is the physical implementation, or rather, the coupling of both.
You've discounted the value of research.
Preposterously, we have a system that does the opposite and encourages universities to file patents on publicly-funded research.
Patents expire after 20 years. There is no need to buy them. You just invite more corruption if you tell the government to pick and choose which ones are "good".
The corruption problem is the same one a with NIH grants and everything else, it's just doing it after the fact in exchange for the patent. You try to minimize the inefficiency as best you can, but even when it's not zero it can still be smaller than the inefficiency from waiting for the patent to expire.
The entire point is that the patent goes into the public domain. The government pays money to cause it to not be patented anymore.
> Good thing the public will never go for this so I don't need to worry.
What does the public have anything to do with it? It's Congress that makes the laws. There are surely some companies with lobbyists who would like to make some tax dollars. Let a bit of corruption do something good for once.
Congress most certainly is not going to undo all patent law. The ability to be rewarded for your work is foundational to capitalism.
> Let a bit of corruption do something good for once.
This is nonsensical.
Abolishing the root cause would be better. And if this was done, then yes, government buyouts and release of existing patents would be fantastic, where the release would spur growth.
And now there’s enough money at stake to trigger a land rush to fence off entire problems using solutions that just don’t merit protection.
Because the key argument is that math is not patentable. Software patents are relatively uniquely expressible amoung patents as mathematical conjectures.
If someone constructively proves p=np then they deserve some term-limited profit taking.
Getting a monopoly for being the first pos to mail some legalese to the right government office about clicking a button once to order something for delivery is both not math and not beneficial to society.
The problem is software patents is not that software is math. The problem is software patents is that most patentable software is obvious to anyone without severe brain damage, and no one in the legal establishment has historically had any clue how to assess whether some idea in software is non-obvious.
It's very hard to otherwise compete with an established company who can copy your brilliant idea, scale, and distribute it way faster and more cheaply than you can.
But assume s/he did afford one.
Now comes the theft. Amazon steals it, and now our tinkerer needs to cough up millions of dollars to go after a one-trillion dollar company. It lingers in courts for decades. Even pro-bono legal advice would eventually give up. Futile.
Patents exist only for companies to wage war for monopolies.
[1] https://news.ycombinator.com/item?id=29115767
Let's also not forget the broader context here, which is software patents.
It’s not true that you will always need to put up the money yourself. If the patent is sufficiently valuable you can enter into joint ventures, or contingency agreements to have someone else bankroll the fight.
Having a large company infringe on a patent also makes it a desirable purchase for any other company with a bone to pick with the infringer.
"It’s not true that you will always need to put up the money yourself."
I don't believe this was my argument. I simply said "capital".
Stopping software patents as a first step would set a precedent and provide a beachhead.
I think everyone here is in agreement that software patents are harmful and not what was intended by the patent system. Software is already protected by copyright.
In software, we’ve already returned to the state that patents were designed to avoid. Everything of value is treated as a trade secret. In several domains of computer science, virtually everything that is state-of-the-art is never published and is instead slathered in NDAs. And for good reason, patents on computer science have been effectively unenforceable for decades. So instead, no one publishes.
This isn’t speculation, it is official policy in organizations I work with. The end state is that public computer science is mediocre compute science. I’m agnostic about it since it doesn’t affect me either way, but I recognize the suboptimality.
They're not. Software is already protected by copyright.
It works this way in chemical engineering, for example, where I have some experience. You license the process and the implementation of the process independently, because they are not the same work; the patent in the former and the copyright in the latter.
If you can't have that right, you won't invest those millions of dollars.
But software is not like that, because innovation is mainly driven by building on top of small things, not doing a crazy expensive research project.
So industries are different, and I do see the benefit for some.
> Software should be free
This is unnecessary. Copyright allows us to decide how to distribute software we create. By including "software should be free", it sounds like they want to abolish copyright as well.
Ok? I'm not sure what point you are making. I didn't mention FSF.
This is misleading. Linux has all sorts of stuff in it that used to be under patent protection but isn't anymore because the patents expired. The entire argument for patents is that they incentivize both the creation of new things and the public disclosure of them, with the idea that eventually they will become part of the public domain. There is a complicated cost-benefit analysis here that has been studied by academics for years, which the FSF just ignores. This is fine if you view this as an advocacy piece, but not fine if you want to actually learn something about the issue.
For what it's worth, I tend to agree with the ultimate conclusion that software patents today do more harm than good. But if you want to convince policy makers, you have to address the issue on a less superficial level. And that means actually acknowledging the other side's arguments and rebutting them with evidence or counterarguments.
The concept of IP is built on top of convenient legal fictions. It was never intended to be consistent. Nonetheless, it recognizes the implications of the cost asymmetry of generating IP versus copying it. There are no trivial economic solutions to the optimization of IP generation, it is an extremely difficult theory problem.
I think the vast majority of us will benefit from software continuing to be classified as creative works so we can use copyright law to either protect commercial interests and/or as the underpinning for open source copyleft.
Hey! Don't you know everyone programs in Coq these days and every CSS style sheet is backed by proof? /s
Lemma 1: The computation performed by any program or function (algorithm) operating on a Turing Machine can be represented by an initial Turing Machine state and the rules of turing machine computation
Lemma 2: There are countably many turing machines
Lemma 3: Therefore, a unique integer can be assigned to each Turing-machine program that could ever possibly exist.
Lemma 4: All implementations of a function, regardless of language, can therefore be concisely and uniquely represented by a particular integer.
Contradiction: Implementations of a function can be copyrighted, and yet integers cannot.
Contradiction: Abstract algorithms can be patented, and yet integers cannot.
Computer programs and algorithms are very akin to numbers. Most of them are useless, they don't perform any useful computation, many of them are not "correct", and most of them never even halt, most likely. However, there are certain "interesting" numbers that have useful properties due to emergent properties of the mathematical systems in which they exist. This is highly akin to, for example, prime numbers. Can you patent a prime number? Well, I can patent computer program 389355935, and just by giving you that number, I've given you all the information needed to implement that particular Turing Machine.
There are not countably many possible books that could ever exist.
Therefore, I can't tell you "I just wrote book 394343" and have that convey any useful information. You can do that with computer programs.
Computer programs are integers. At least for Turing Machines. "Useful" computer programs are like "primes" or other "interesting numbers", they are scattered around the (integer) number line and they need to be discovered, but they are emergent mathematical properties of the system, not novel innovations. The innovation comes from deciding that particular computation is useful - like primes can be used as a basis for cryptography.
Cryptography is patentable. The primes that go into it are not. Those are just numbers that happen to have some useful property for this application.
A book is a sequence of characters c_1,...,c_n where each c_1 comes from a finite set.
The set of all books is definitely countable.
> Therefore, I can't tell you "I just wrote book 394343" and have that convey any useful information.
True.
> You can do that with computer programs.
But USPTO won't give a shit. Go ahead and compute some Goedelian encoding of your program, file it, and let me know how that goes. You have to convey useful information about how the program behaves.
> Computer programs are integers
I mean at the end of the day a book is just a shitload of bits you're streaming to some printer.
I don’t see why there is any difference between books and programs in this regard.
Every patent application is a finite string.
At one end of the spectrum is source code that’s so poorly written it’s practically impossible to understand or edit. OTOH, well written code with good abstractions can make changes trivial; it can also document relevant information and educate engineers.
There’s a lot of value and creativity embodied in well written applications beyond the derived object code and those qualities are (in my mind) distinct from compiled algorithms.
My experience writing patents:
1. Engineer/scientist writes up a very clear and understandable description of the thing. Perhaps including some pseudo-code, diagrams, or derivations along the way, but in any case definitely a high value add description rather than a dump from a git repo. On this we can agree.
2. Engineer/scientist presents this description to lawyer(s), often in the form of a powerpoint.
3. Lawyers then mangle the clean description beyond recognition.
There's something very, very, very broken about the patent application/review process. Patents should be written for makers to use and only incidentally comprehensible to legal professionals, not the other way around. After all, isn't encourage dissemination of knowledge the whole point of patents?
I imagine the process of creating software patent applications probably varies by org. I agree the review process seems quite flawed, that’s supported by comments I’ve heard from several lawyers as well as high-profile screw ups, e.g failing to research prior art or applying the requirement of non-obviousness both inconsistently and sometimes incomprehensibly.
Regarding dissemination of information, yes, my understanding is patents are a trade between the public and the inventor, the inventor receives a period of legally enforceable exclusivity in exchange for disclosing the invention to the public. My opinion is this is overkill in the software industry as we already get exclusivity (and without the need to disclose): we can conceal our source code and assert copyright protections on object code. Conditions are quite different in other industries, for instance manufacture of physical devices.
That being said, fuck all patents, ideas don't belong to anyone.
From a US perspective, I’d more likely agree if we were even sorta good at handling displaced or obsoleted workers. Abolishing software patents without making a bunch of other changes would be a giant hit to the American economy and kill many productive worker’s livelihoods with no follow-up. It’s wrong to do to folks driving truck and it’s wrong to do to commercial software developers and all the other folks who make their living in that industry. Beyond that, lots of technically boring, unsexy software is super important to the world, and the open source alternatives prove that folks just don’t want to work on those problems for free, especially when there are demanding/intricate/fussy interface requirements. The number of instances in which FOSS properly catered to non-technical users with advanced use cases while delivering fantastic usability is pretty low from what I gather. For example, with the art software I work with professionally, Blender’s comparatively recent changes got them there to some extent, but anyone who thinks gimp is a usable replacement for photoshop hasn’t used either enough to make that judgement. People might even get mad you intimating there’s something to fix. Big corps like IBM won’t pay people to write FOSS all day unless there’s a financial incentive. I can picture all enterprise software now being so complicated and convoluted to install that procuring expensive services is the only way to use it. Or maybe requiring custom hardware to perform necessary parts of a process. Maybe even abandoning software altogether and making things mechanical again? Not that computing is perfectly green, but how would that work out for the environment?
I’d love to get pushback on any of this if folks have thoughts. Personally I’d love to see a world where intellectual property just wasn’t a thing… but we don’t live in that world and intellectual property laws are not the biggest barrier to achieving it. It just seems like a super naive demand that assumes software operates in a vacuum and that parity between commercial and open source offerings is even possible in our economic system.
(Downvotes aren’t counterarguments)
Well, some people do want to work on such problems for free, even if not everyone does.
> Maybe even abandoning software altogether and making things mechanical again?
There are some advantages to such a thing, since computers are overused for many things. However, a computer is still useful for many things; mechanical isn't better for everything.
> Not that computing is perfectly green, but how would that work out for the environment?
That I don't know, but should probably be considered too. However, often companies put too much extra stuff in computer programs that is used even if you do not want it, which also wastes energy.
> Personally I’d love to see a world where intellectual property just wasn’t a thing…
I agree to abolish copyright/patents (although trademarks can be useful, but still there are things that should not be sued for trademark infringement, so it still needs to be fixed due to this). But, there are also ways to go part way toward abolishing copyrights and patents; Question Copyright had some ideas. Another idea would be limiting their scope so that if it has freedom then it can be ignored, or to be ignored for practical works, to limit durations, other changes, etc. Another idea would be that if you declare yourself exempt then you can neither claim copyright or patents on anything but neither can be sued or arrested for it, either. However, I think it would be much better to abolish copyright and patent laws entirely.
It’s not whether anyone does, it’s whether enough people do.
In FOSS I don’t see evidence of any large project getting significant usability work for free. Firefox, likely the most popular user-facing FOSS application, it’s essentially adware via a nonprofit. Blender’s foundation has significant support from corporations. There are people working on those problems for FOSS but they’re likely paid, and that’s just not feasible for most FOSS. Also, freeness in our society can have unintended consequences— the way news organizations are forced to operate because they can’t easily be directly compensated for their work (because people expect it to be free) is a huge problem. I can’t imagine software being any different in today’s context.
Beyond that, most FOSS is entirely developer-managed and project decisions reflect that bias. To this day, many folks think the only problem with git’s interface is its users unwillingness to read the documentation. Literally zero people who aren’t software developers— including the copywriters, project managers, designers, support people, etc. who end up also having to use it— would agree.
There are certainly usability advantages with many hardware applications over software replacements but being able to use generic logic hardware to control things is a pretty huge advantage. Most folks don’t realize how resource-intensive manufacturing is. I haven’t run the numbers, but I’ll bet a few extra PCBs would equal a whole lot of software bloat. Hardware is also vastly less flexible, and as a result would probably be significantly less efficient to create. I haven’t run any numbers though.
I often advocate for drastically scaling back copyrights— especially in media and software. Their current state is absurd.
Forgive my hyperbole to emphasize the dichotomy: Abolishing software patents, however, seems like fighting America’s imperialist behaviors by demanding an immediate disarmament of the country, entirely. I’d love that if our world was in a state that could facilitate that without immediately being overtaken by China… that wouldn’t be better for anybody.
I had the idea of a license (not yet written) which allows free use like it is in the public domain, and cannot be sued/arrested for copyright violation or for anti-circumvention or other things like that, and no attribution or copyright notice is required, but derivative works etc must be licensed by either the same license or GNU GPL 3 or GNU AGPL 3 or CC-BY-SA 4.0 (only) or later versions of GNU GPL or AGPL. These rights will then apply to patents as well as copyrights (so you can't patent a derivative work either). Someone can claim otherwise but then their claim is invalid, and only in this circumstance can you countersue. It is supposed to be effectively the same if the copyright and patent laws were abolished; if those laws are abolished the only difference is that relicensing them by the other license will not be possible, but the other rights are supposed to be the same. (The reason the limited relicensing is allowed is to be practical.)
Abolishing software patents may be a good start, though. Another alternative would be the law to be made unenforceable against FOSS (although there are probably too many difficulties in doing this properly). However, this would not be as good as just abolishing patents entirely.
When patents are used, they have the effect of making innovation twenty years behind. When used incorrectly, they are even worse.
Similar as to how google did steal the JVM claimimg that just because they "added" "some" memory features they suddenly revolutionized the entire thing... Bullshit specially being open sourced they could have easily added those features so that THE ENTIRETY of the java/jvm ecosystem could benefit from such improvements, even in desktop, ALSO allowing what now we even came to know as "android apps" to run in other platforms since well at the end... It just a jvm. A move which by the way has become even much clearer now that they are changing the tratitional packaging format (casually) now that android apps begin running on other devises. Its clear it's intent was to get a bunch of already well trained coding monkeys by effectively copying the entire API so they could quickly ease adoption of their platform without giving back to the same jvm community that they copied/reused to make billions
Sadly the person choosen to explain this at the SCOTUS was too stupid and not technical enough to put this into words