The WSJ decided to weigh in on this question yesterday, by presenting something of a debate. Yet this article, like most such discussions, misses the basic point.
Are exclusive rights, of the sort that define our IP systems, potentially useful in motivating innovative software development? Absolutely.
Can the bundle of rights that we use successfully to motivate innovation in pharmaceuticals similarly motivate innovation in software? Not a chance in hell.
By bifurcating all IP into the buckets of patent and copyright, we shoehorn innovations where they have no right being. Our patent system offers a uniform set of rights to innovators in all industries, independent of: up-front capital needs; likelihood of success; typical time from investment to return; ability to divert work if you are not first past the post; and relationship between innovation and product. While judges may vary their ruling by industry, they have no statutory right to do so--it represents clear activism from the bench. And to make matters worse, we imposed this uniformity on patent systems around the world via international treaty (TRIPS).
The debate over software patents will continue until we do the sensible thing: craft a set of rights tailored to the needs and incentives of software innovators.
I wrote about one such system more than a decade ago. I was not the first. I was not the last.
And I am not holding my breath.