Maybe they would, but they didn't.
The point of the patent system is to incentivize people to publish their inventions. The secondary purpose is to encourage invention. Giving a temporary monopoly is not the greatest solution, but try coming up with a better one.
And as software gets more complex, you need to support it and build new features. That happens all the time without the aid of patents. In fact, when a patent is made, then sure its patented but so what? It can't be used for decades, and so only one party benefits and the idea that is beneficial to society stagnates.
This is not a zero sum game here. If you patent a medicine for 10 years, then people like Martin Shkreli come along and jack up the price of their product, nobody is allowed to offer cheaper medicine and literally millions die.
Or you have a situation where a non-lethal arrow is patented, someone independently comes up with the same idea, documents it and sells it, does to want to patent it and then gets sued to an inch of their life. Then you have an independently document invention, and no innovation.
The argument doesn't stack up.
Open-source is essentially just a tool for collaborating on software more easily (ignoring the Free Software side for a sec), but which requires giving up propriety over the software.
Patents are hundreds of years old. In the fifteenth century markets and science was very different to what it is today. There is an argument that patents were helpful before the world evolved to freer markets. I mean, patents were invented around the time of feudalism, and nobody now considers THAT to be a good idea. An example used for the case of patents is James Watt's steam engine, an amazing invention. But in my view it is an example of an invention where innovation was deliberately stymied; sure he improved upon it greatly, but then again he prevented any number of other capable people from doing so and caused a monopoly. And ironically he could not have patented his invention had he not taken the original non-patented ideas of Thomas Savery and Thomas Newcomen, who originally worked out the general principle.
In fact, you only have to look at the most important invention IMO the world ever produced to see that patents would have stopped innovation entirely - the printing press, which predates patents by a century. Without the printing press, almost no modern innovation would have been possible. There were vast numbers of printing presses produced that allowed much more rapid dissemination of ideas and ushered in the current age. Had a patent been allowed on this innovation, then the modern day would look much, much more different. Even religion would have been different.
No, patents may discourage trade secrets, but you assume that they are the only mechanism for doing so, and you dismiss the fact that they aren't necessary to prevent someone else from discovering that trade secret.
Open source is relatively orthogonal to the patent system. There is some overlap in that they both require disclosure, but the fundamental incentives are different, so you should expect different software to be developed.
Improvements to patents can be patented in their own right, by different owners. I agree that it is significantly more onerous than open source.
Scummy as Martin Shkreli was, he jacked the price up on a generic... Not something under patent. It just takes time/money to certify that new generic lines are manufactured to FDA standards, do he had a temporary monopoly.
Lawsuits against "infringing" software are relatively easy, and expensive to defend against. That is independent of whether the defendant patented the software or not. This is more the nature of our legal system, and one could argue that the patent system should handle this stuff internally. However, I think the legal system would be hard to improve upon without causing other problems, like making it difficult to challenge for legitimate infringement.
All in all, I agree a lot of questionable patents get issued. I just think the reality is far more subtle.
Your final point about patent infringement... I dunno what to say. You've just explained why patents are inherently problematic, the patent system can't handle it internally because then they would be handling financial lawsuits in a non-transparent matter, and the rule of law would be in essence damaged. By making the patent office the approvers AND handle objections - that's not going to ever work. They'll almost always agree with their own decision. After all, they made the wrong decision in the first place!
Patents occur within the legal framework. If the patent system is hard to improve, then those other issues you mention are, to my kind, not immeasurably greater than the utterly broken patent system we gave today.
I don't feel the reality is as subtle as you talk about. I think it's actually as clear as day that patents distort markets, and I don't feel you've demonstrated that patents aren't orthogonal to open source software, except where it comes to financial incentives.
Open Source financial incentives are to build the best software that the market wants, and sell the code with backing support contracts and early access to new features that are shown in the open, with guarantees that the best people are working on the software; yet still the same time allowing maximum competition and innovation in the market whilst each company or organization strives to produce the most attractive offering.
Patents attempt to produce a monopoly on an idea and prevent anyone else from capitalising on it for decades. It assumes that nobody will ever want to form an invention unless they have exclusive control over that idea. That's self-contradictory - protecting a patent means that someone else WILL have that idea eventually and want to build a product around it, or even incorporate it into their product. They won't be able to, except at great cost. This clearly and IS stifling innovation. The rise of patent trolls and defensive patents are just two examples of how utterly and fundamentally flawed the entire concept of patents are.
A couple of important points:
> They are still making innovative products, but they distorted their market power and millions of poor Indian citizen's lives were immeasurably worse off for it.
No, most innovation in new drugs happen in countries with strong patent protection. There is a lot of development outsourced to India, but almost nothing innovative on the development side. That isn't to say India's policy doesn't make sense for them, but they are essentially just stealing from the US and other countries. Imagine if that were true worldwide 20 years ago. Health insurance would be a lot cheaper, yes, but a large percentage of drugs developed in the last 20 years would not exist. It's a trade off that maximizes a longer term return.
> infringement
Yeah, I was just pointing out that a lot of the patent system is designed to protect people who are being infringed by larger entities. Just because it is abused by others doesn't mean it doesn't serve a purpose.
> patents distort markets
Of course they do, but it is not necessarily net negative.
> demonstrated that patents aren't orthogonal
Yes, that is a very long discussion. However, it should be fairly obvious that the software developed by industry and the software available in the open source world is not the same. I would go so far as to say the open source world is an order of magnitude or two smaller than software from for-profit entities. There are different incentives for releasing open source software than starting a business, and patents are designed to make the latter more attractive.
> Patents attempt to produce a monopoly on an idea and prevent anyone else from capitalising on it for decades.
No, patents provide a temporary, licensable monopoly on an implementation. You don't patent the idea of holding paper together, you patent the concrete implementation and manufacture of a paper clip.
More importantly, they require disclosure of that implementation to the rest of the world. I think this gets lost when people talk about removing the patent system. The primary purpose wasn't to encourage invention, but to make sure people disclose it.
Maybe I'm missing something but there aren't many examples of truly innovative open source software - most of OSS projects even describe themselves as "Open Source alternative to [insert innovative commercial product here]"
edit: removed the "that's ridiculous" comment. I'm sorry, you aren't ridiculous, nor is your comment. That showed you a great deal of disrespect, and I was out of line. I hope you can accept this apology. My disagreement with your argument should never have led to disrespectful comments.
(I just hit the up vote arrow)
I think some of my other comments have this language in them. That's unfortunate, it's just this is just the first one I noticed.
What is missed here is they might of come up with a better solution, but due to the risk of a lawsuit they never even try.
And there you have why your situation is no different.
Software is a dish, we are chefs, and techniques are our recipes and principles. You should no sooner be able to patent a chicken casserole than a baseband. We merely discover what is already true and turn it into code.