[nimble]

Now you're the one who's ignored that this was hypothetical.

My point was that if we go ahead with your proposal, such that patent protection becomes about preventing copying work rather than (possibly accidentally) duplicating an idea, then what's the point of filing for patents? It could work just like copyright does now.

Rayiner: I can't respond to your next post for a while, but you didn't address the main point I was attempting to make in comparison to copyright: You don't need to file. There would be rules that you can't significantly copy someone else's hard work. If someone copies your hard work, it will be evident from the facts, just as it is evident with copyright violations, and you can sue them. No patent required.

[rayiner]

It wouldn't work just like copyright does, even if you extended copyright to functional designs.

Consider how patents and copyrights interact with respect to software. Say you make a new audio encoder leveraging some psycho-acoustic property. Copyright protects the literal source code only. It doesn't prevent someone from doing a "clean room" reimplementation of your software, and in the process taking advantage of all of the expensive testing you did to validate your psycho-acoustic model.

Patents as they exist today might apply to any encoder leveraging that psycho-acoustic property. I.e. a competitor couldn't hold up the fact that it performed independent testing to build its own psycho-acoustic model as a defense to patent infringement.

My proposal falls in-between. You can prevent someone from reverse-engineering your program to copy the essential details, which is the fruit of your expensive R&D. However, you can't prevent someone from using the same basic idea when they go to the expense of deriving those essential details for themselves from the basic idea. What patents as they exist now protect, and what my proposal explicitly wouldn't, is the "flash of insight." The realization that multiple people may have in response to some journal paper that some newly-described psycho-acoustic phenomenon may be used to build better audio encoders.

[nimble]

Implicit in my characterization "copyright for ideas" is that this proposal will somehow extend copyright, as it's currently understood, to cover ideas. I understand your point that copyright as it exists today does not cover more abstract ideas.

The main difference I was attempting to emphasize between copyrights and patents is that copyrights are automatic whereas patents must be filed and granted. And my point is that your proposal, which seems quite reasonable to me, would seem to work just fine with the copyright model of automatic rights: no patent filing required. And for that matter, the distinction between elaborate designs, which cannot be copied, and "flashes of insight", which can, looks a lot to me like a principle of fair use.

No?