Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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The Patent System: End it, don't mend it

In the Christian Science Monitor


The Christian Science Monitor, of all places?

I guess this is a case of the proverbial stopped clock being right twice a day. :)

There is a companion article with the opposing view,

In a Wikipedia age, should all ideas be free?

This article is "flawed". One subheading is: "Just compensation for hard work". In that section William F. Shughart II writes: "In the Wikipedia age, it may seem that lots of people are happy to work free of charge for the common good. But the reality is that new ideas are scarce and their discoverers, as our Founding Fathers recognized, merit protection from those who seek to gain from their intellect, investments, and hard work without just compensation."

First, ideas are not scarce.

Second, if two people come-up with the same idea and spent significant hard work developing it, shouldn't they both have a monopoly privilege? The way it works now; the one who gets the patent first sues the XXXX out of anyone else, thereby depriving others of their "hard work".

Does Shughart understand what he is saying??????? This is unbelievable -> "It is certainly true that, as contemplated by the 1998 Sonny Bono Copyright Term Extension Act, the authors of books, Walt Disney characters, and computer software will not likely be deterred from being creative if their children or grandchildren are denied royalty payments."

The Sonny Bono Copyright Term Extension Act extended the period of copyright, making it similar to a welfare entitlement for the children, not a deprivation.

While I do agree with the general conclusion that patents are bad, I think the article in question steered offtopic when it started to include negative effects created by copyright, and that detracted from the message.
Why? Copyright is equally evil and in similar ways.
The patent system, especially when applied to many types of process inventions within the reach of many people, is hurting society and individuals.

Time spent writing up patents is time not developing products.

Money spent paying patent application and litigation (or legal advice) fees is money not invested in products.

The patent system allows a person to take away the inventions of many because the patent claims are very vague descriptions.

It's also true we don't invent in a vacuum. Why aren't the many who helped the inventor be inspired not getting credit and being barred 100%? Why are the many that can develop such invention when the time comes being barred as well? [We can't invent everything we could possibly invent because it would take many lifetimes of time to cover all things accessible to our mind/ingenuity.. and we certainly can't invent everything we are capable of inventing before everyone else that is filing a patent does.. ie, we can't all be first, even if we could easily be 10th or 100th or invent on-demand.]

The result is that every single patent removes *many* inventions and inventors from play no matter how much hard work has already been invested (possibly independently and perhaps even earlier than the patent filing), no matter how important the invention that would be developed is, and no matter how distinct the invention is with details not imagined by the patent author.

This *many* is particularly large when we consider things like business method and software patents (process patents) since these have a very low overhead and hence a large number of participating inventors (so the opportunity costs or barring a second inventor is multiplied many-fold). We don't even have the excuse of high capital requirements. We also don't have the excuse that a monopoly (never mind a 20 year monopoly) is needed as a motivator because the results of the work are themselves rewarding in many ways (hobby) and can even be leveraged for profit even if others know -- not just the vague invention concepts -- but the intimate details of the invention.

Things like software, which can be developed to high complexity, very fast, and manufactured/distributed very cheaply when the inventors are able to collaborate (as done by many in open source fashion), take a special hard hit from patents for these reasons and hence represent a huge loss to society.

But really, because of the growth of the Internet and of inexpensive computing, all types of inventions that could benefit from world-wide collaboration are particularly hindered (in relationship to the past) by the patenting system and in proportion to the level of collaboration otherwise gained.

Furthermore, the Internet and computing have enabled many business models and lowered many costs so that it's easier and quicker than ever to find a way to profit from any given invention. Thus, the monopoly subsidies/protections aren't nearly as important to the inventor today as it was in the past in order to making it possible for a profit to be realized. [However, the monopolies are perhaps even more desired today by some patent authors (by trolls and large companies) because they allow for a tax or injunction on potentially a very larger number of products.]

Assuming the "nonobvious" test was not a joke test and assuming patents weren't extremely broad, we still find that the nonobvious test is misguided. An actual brilliant invention is not something you want to hog up if the goal is to promote the progress of science and useful arts. After all, it's these insightful inventions that give the most to society (so offer very large opportunity costs if removed from play), and it's very unlikely any single individual has a monopoly in the skills and experience to be able to invent it. Remember, we don't invent in a vacuum. For example, the General Theory of Relativity is not something a caveman could have fathomed since it takes lots of leveraging from societal advancements and peers to be in a position to invent it (this was as true for Einstein as it would have been for anyone else). It's true we all must stand on the shoulders of giants and colleagues.

What's more, the patent reward system encourages people to be leeches. It's very possible and rewarding to watch what others are doing and then file at the USPTO broad descriptions to cover those inventions-in-progress. It's also very possible and rewarding to be the first to file for add-ons that would be very likely to eventually be created for a given product. It is much quicker to write broad descriptions than it is to hash out all the required details to actually implement the invention; hence, it's rather straightforward to race ahead of the work of others who are busy working (especially if in the public eye) and not obsessed with filing patents themselves. [Patents can get written up much quicker than prior art can get developed, all else being equal.]

The patent system also helps out large incumbents against smaller competitors in at least two ways. The first is as just stated where patents can be taken out on extensions to existing inventions (especially if these have not been patented). This can be used to kill a competing product (ie, to severely limit its competitive functionality moving forward) or to create very high costs for a smaller competitor (eg, at the bargaining table). The second way is simply to leverage an existing large body of many patents (regardless of whether these apply) and the high costs of court lawsuits to effectively drive the smaller competitors into the graveyard. Only those not producing products are safe (but these folks, by definition, are not competitors).

So the patent system artificially promotes the creation of cheaters and of players very difficult to lodge from their position in the marketplace.

In conclusion, the patent system is hampering hard-workers and fair people in favor of leeches and those with a particular set of skills and ambitions. It's a system lacking in any decent level of equity because it gives all the prize money to the "first" to do something so that everyone else gets zero credit no matter how close they came in second or even 1000th and no matter how much they helped provide stepping stones to the patent monopolist. Add the fact that patents go against the essence of collaboration (collaboration: which enables greater products to be achieved) and ignore "independent" invention (ie, that they add sludge to the gears of collaboration and independent invention), and it should be clear that (esp. software...) patents do not promote the progress of science and useful arts. Meanwhile, patents most definitely abridge the Constitutional rights of individuals everywhere (violate the first, ninth, and tenth amendments to the US Constitution). (Software) patent law as implemented by the USPTO appear to be unconstitutional and likely stand a low chance of being fixable.

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