I missed this piece when I first posted (11/30) on the Supreme Court's oral hearing on “obviousness” in the granting of a patent (link here). The court seems to be very upset at the idea that many thousands of patents already granted would be nullified, creating chaos in the intellectual property industry.

There is a (too) simple solution: abolish all patents and depend on trade secrets to create a monopoly and provide sufficient incentive to develop new technology. If an invention cannot be protected by secrecy, it is obvious and fails to meet the constitutional standard. In the interest of making trade secrets a more attractive incentive to invention, one could really prosecute thefts of trade secrets.

A contrary argument is that granting a patent requires that the invention be made public so that further invention can be based on it. From my reading of the record, that simply hasn't happened, so the argument is invalid.

Of course, patents aren't going to be abolished. Too many vested interests in the present system have developed enormous political power.

Any ideas for alternative, less extreme measures that will improve the system and have some chance of acceptance?

"If an invention cannot be protected by secrecy, it is obvious and fails to meet the constitutional standard."

Just because something can be reverse engineered, or chemically analyzed, doesn't make it obvious.

Are you referring to internal use patents (i.e. business or engineering methods) instead of patents on objects sold to consumers?

Anon, if we include in publication the act of delivering a device to members of the public where the invention can be reverse engineered, then secrecy means keeping even the device secret.

My late father was an inventor and owned a factory called Wire Products, and many of his wire component manufacturing machines were kept secret. I suspect that the only surviving documentation of these devices rests in my attic somewhere. Notice that patents did not incentivise him to publish such inventions. Patents are a commercial advantage for obviously reproducible products - not innovations that can be protected by secrecy.

I think John Bennett meant that if despite keeping your invention secret in EVERY respect, someone still re-invents it, then it is clearly obvious. In other words, secrecy does not protect obvious ideas.

Patents are designed to encourage the mass production of products that rely upon novel mechanisms, e.g. tin openers. They're supposed to hold back the tides of incumbent manufacturers that could easily reproduce a novel tin-opener - in order to reward the entrepreneurial spirit of the inventive entrant with the novel idea.

But, I wonder if these days, if you have an easily copied design, that is nevertheless novel, whether you need more reward than you can obtain even without patents. Those fastest to market can still corner it before the incumbents can replicate a novel product.

The last thing Dyson had was the threat of people copying his cyclone vacuum cleaner. He had to capture the market before the incumbents regretted their rejections. After that point, even if they had copied him, I wonder if it would have made much difference to his fortunes. So, did patents really reward Dyson?

I am not as versed as everyone here in this subject so my comments may seem somewhat naïve. I only recently discovered your blog and have been enjoying it immensely and felt it was time to post.

I agree that a lot of patents are granted frivolously and that the patent review process and the renewal process could definitely use an overhaul. Where my agreement diverges is that all patents must be removed.

It seems that patents provide an important incentive in the innovation process. It only seems logical that someone will work harder if they expect their reward to be larger. I thought of a product that I use daily, Google, and wondered if Sergey and Larry would have had the drive to develop Google if there was no reward at the end of the tunnel. Does Google having a patent on their search technology limit the entry of new search engines? No. Look at Hakia a new, arguably, better search engine that is currently in beta testing.

Another, non-high tech, example of people working extremely hard with the expectation of receiving a “copyright” later and benefiting from their earlier work is professors. We can see how professors before receiving tenure (an academic patent) are prolific publishers. However, once their patent has been granted, their output dramatically decreases.

I could go into more depth on these two but I think the gist is obvious. Please help me see the error of my ways.

Sorry about the double post. My screen froze and I reloaded the page.

No worries: happens to all of us. We (the editors) try to delete the redundant posts.

Some comments suggest to me that their writers would benefit from reading Against Intellectual Monopoly by Michele Boldrin and David K. Levine. Its free on this website, http://www.dklevine.com/general/intellectual/against.htm I'm sure they won't mind a plug and I am learning from them. One concept I knew but have had reinforced: the strength of being first to market or the first mover. It has another great benefit--the firster has to keep innovating the maintain his advantage, which is generally good for the consumer--a lot better than a patent or copyright that gets sat on because he is already benefiting big time. How much would Microsoft innovate without competition from Linux or Firefox.

Come on John be clear about it. Out of Anonymous, Sean, and me, who are you indicating that you think would benefit from reading the paper?

NB I presume you've read it, and that David has read his own work.

Thanks Crosbie for calling me on "who would benefit from reading the paper." It was a patronizing remark and all I meant to do was call attention to an interesting and informative account. I need to find a better lead in on something I just wanted to suggest to someone who hadn't read it. It did get your attention--and justified ire. The apologies stand.

Ire? Hmmm. I wouldn't go that far. Maybe I needed to make it more plain that my post was playful. ;-)

Sean is right that Google didn't patent its search engine. The Economist's Technology Quarterly in March, 2006, quoted a Google executive saying the company keeps its most important algorithms a secret. However, Google has taken out a few patents, in an apparent reversal of its "Don't Be Evil" slogan, including one for (I think) an RSS feed mechanism, which was mentioned on the internet not long ago.