| So, algorithms are not automatically (supposed to be) patentable like you suggest, quite the opposite. Although on both sides of the Atlantic people have been bending the rules one way or the other for quite some time. US: https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern... EU: https://en.wikipedia.org/wiki/Software_patents_under_the_Eur... Nevertheless, Software Patents do not appear to be suitable for purpose. > "[open source, and thus public information!] is decades behind the state of the art" It would appear that software patents are not actually actually incentivizing the disclosure of workable methods-of-the-art to society. In fact, I don't hear of people using software patent documents to make something, like mechanical people sometimes do. I would love to be shown to be wrong on this. AFAIK, a practitioner of the art cannot take a software patent and trivially implement it. Unlike a patent, a practitioner of the art can take a unit of FLOSS code and implement and/or improve it. So, based on your view of the world, open source seems to be taking the niche that software patents should have been creating. On the one hand, fortunately the situation isn't quite as horrible as you suggest, and there are in fact innovative FLOSS projects. In part because some companies are incentivized to release their work as FLOSS to begin with, or work with a central FLOSS pool. On the other hand, this is all voluntary. There are often good incentives to defect from many different voluntary IP arrangements, even those that do include use of patents (see the case of H.265 ). I think -with regards to software- that we are going to need a very different way of approaching IP. The current patent system is quite clearly useless at getting people to actually disclose their secrets, so we'll need a different method. |
In my view, the default outcome will be trade secrets, and it is already the case in many software areas. This has limits in practice as software trade secrets do have a tendency to leak out. I know a few clever database algorithms that are almost certainly trade secrets somewhere (origin is unclear), passed down but not in any public literature. On the other hand, I am aware of major (qualitative) tech advancements in e.g. graph algorithms that have not leaked after 15 years.
I think we need to be clear about the objective with IP law.