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.
I guess you were writing the article to be provocative, but the emotive language and non-rigorous conclusions may mislead some of your readers.
The system was never supposed to guarantee “a fair and automatic reward” for inventors, but it does not mean that they should be forced to disclose their knowhow for free.
There is definitely a quid-pro-quo and from the start, it was assumed that there would be a potential economic advantage for the inverntor to reward the benefits society would get from disclosure.
While it is valid to argue that the market for modern technology includes a large proportion with short product life cycles, you do not give any objective evidence of a benefit to society that would accrue from reducing the patent=protection period.
Indeed, the developments in copyright law are all in the opposite direction, even though one could say that innovation and life cycles are even shorter there.
Graphs are always a convenient way to fool people. Your diagram is a useful conceptual tool to visually describe your argument but it has no scientific basis. It is not based on any objective market data, the vertical axis has no units of measurement, I suspect it is scaled to exaggerate the claimed advantage, it does not show any innovation arising from the publication of the patent, and the analysis does not extend on the horizontal axis to show the benefits that continue to society after the expiry of the patent protection.
I would like to congratulate you for opening a debate. But I think your argument would benefit from more balance.
I do not claim to be unbiassed. I am an evangelist for IP commercialization. I believe that there inventors should share their discoveries with the world and believe that they should be rewarded handsomely for that.
Raymond Hegarty
http://intellectualprofit.blogspot.com
Raymond,
I really appreciate your comment and the fact that you take the challenge of this discussion.
Besides other points I have one important point in answering your comment. You say that my argument “has no scientific basis”. Since I am not a scientist that might be true. But actually this same argument also is the weakest part of the patent system itself. No scientist has ever been able to prove that patents have a positive effect on society at a whole.
What has been proven scientifically is the negative impact of monopolies on the society. Knowing that monopolies are bad and with no scientific prove that patents are positive, patents should have never been introduced in the first place.
Well actually, there is a lot of economic evidence that patents have a positive effect on society.
Some of the biggest effects are the new technologies that would never have come about if there were no economic incentive to invest in the necessary research and development.
This is the most common argument in favour of patent protection. However it is not the only benefit to society.
You probably know, but it is worth pointing out to your readers, that one of the requirements for an inventor to receive patent protection is for him to publish a detailed description of the patent subject matter. This is not a casual requirement. There muse be sufficient detail for the reader to be able to replicate the subject matter. When there are several possible applications of the subject matter, the inventor must also clearly state the “preferred embodiment”.
Placing this information in the public domain is a very valuable benefit to society.
Another benefit to society is that the publication means that other researchers can build on the knowledge and do not have to duplicate the original discovery effort. In this way, they avoid unnecessary frustration, expense and lost time.
It is true that the patent confers monopoly rights for a defined period. I agree with your assertion that certain monopolies have the potential to be harmful to society, but patents are not unilateral unconditional monopolies.
In excess of 140 countries have recognised the benefits to their citizens of giving this conditional monopoly that arises from patent protection and have enshrined it in their national laws and international treaties.
Raymond Hegarty
http://intellectualprofit.blogspot.com/
Hi,
Thanks for remininding everyone that software patents stiffle innovation.
After all, the Nobel Prize of economy of 2007 just demonstrated that too.
http://en.wikipedia.org/wiki/Eric_Maskin
Here:
http://www.researchoninnovation.org/
JPS.
TioLive CEO