Ever since the latest law suite wave by Eolas, everyone with a somewhat common sense must have realized that software patents are nonsense.
It is often referred to the fact that many software patents have the character of trivial patents and should therefore not be recognized as patents. But I am way more intrigued by the question of whether the generic patent concept as such is still of any use.
In my opinion, there is no point in arguing whether a patent is an advantage for the patent holder. By all means, it is favourable in that respect that the patent holder receives the lifelong monopoly for a particular technology. De facto at least, because during the 200-year-old history of the steam engine, 20 years may have seemed a reasonable period of protection; in today’s technological era, 20 years is an eternity.
It is often argued that patents are about protecting intellectual property. The inventor is to be compensated for his development work. Interestingly, consumers regard the idea of patents as fair thinking of the small-scale inventor whose idea is stolen by the large corporation, or the pharmacy industry, which – without patent protection – would supposedly not develop costly meds.
But the original idea of the patent was not about creating a fair and automatic reward system for the inventor. It was more about giving the investor an incentive to disclose his know-how to the general public. And in return, society would not reward the inventor in financial terms but with a time-limited monopoly. But here is the crucial part: the patent concept was not about an inventor’s fundamental right to receive remuneration for intellectual work. It was more about society being prepared to pay dearly (albeit cashless) for new knowledge during periods of scarce know-how and long development cycles.
Today, however, know-how is no longer scarce. Among the 6.8 billion people, there are plenty of intelligent or even genius people, many from aspiring countries like China and India. Each one of them has a desire to ultimately turn his know-how into cash. This can only be done by introducing the know-how to the market. And not as a pure patent exploiter, as, e.g., a manufacturer of tangible goods.
In case of intangible goods, which can be freely copied like e.g. digital products, it will be more difficult, though not impossible. What counts here is the speed of innovation. The one who innovates faster than the competition is able to capitalize on his intellectual property. While patents impede innovation, the cancellation of patent protection would be leading to an innovation race which would ultimately benefit society and the consumer. The following chart shows how the patent system decreases the speed of innovation.
The level of remuneration for innovation can and must be established by global competition. The time-limited monopoly has become inappropriate as a reward system. In light of the oversupply of know-how in the global market, it has become too expensive for society and ultimately for the individual consumer, too.
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