Pat. Pending
In a fantastic op-ed piece in the NY Times (remember, login/pass = optimate/optimate), Michael Crichton discusses the dangerous trend in the current realities of the
Crichton sums it up well by saying "We grant patents at a level of abstraction that is unwise" . He also mentions the ongoing trend of biotech companies patenting parts of the human genome and the fact that this allows them to influence the priorities of medical research (by charging royalties for people investigating certain diseases, the genes for which they have a patent). But the problem is not limited to medicine. The entire patent system is in need of an overhaul, both in terms of means (it is under funded and overworked, and what funds it does get, come largely from processing fees, creating a perverse incentive to spend even less time considering each patent) and underlying philosophy. Perhaps it has been forgotten, but patents were originally seen as an embarrassing necessity; a temporary legal monopoly granted in order to reward innovators for their contribution to the public good. What we have done is forgotten A) that such a system is embarrassing (it flys in the face of liberty) and B) that its purpose was to ADD to the public good, not to allow people to hoard ideas from it. Patents and copyrights were given short lifetimes for this very reason. Furthermore, they were granted for novel inventions or ingenious solutions to problems. A method for synthesizing a protein is patentable. But the scientific observations that lead you to develop it should not be.
This issue is obviously analogous to that of copyright in art (music, literature, film). In both cases, the goal is to increase contributions by talented individuals (be they artists or engineers) to the public sphere, with an understanding that such contributions enrich society in general. We must keep this goal in mind at all times when attempting to balance public access with the private benefit of the artist/innovator. If the reward of innovation is too little (ie. no patent or copyright protection), then people who might have made great contributions will be dissuaded from trying for fear of their work going unrewarded. But if we overpower patent and copyright laws (by granting dangerously broad patents, or extending the lifetime of patents and copyrights too far), then we also deprive society of access to the public good of the innovation (and in both art and science, innovation begets innovation, making the true value of broad access thereto hard to understate).
Thus, the patent dilemma is like a mirror image of the Tragedy of the Commons. In an example of the latter, air pollution for instance, the costs of an action are born by everyone (damage to environment) while the benefits (profits from a factory) accrue only to certain individuals. The end result, without legal intervention such as environmental regulation, is destruction of the common asset.
In the case of overly restrictive patent law, we have an inverse, but equally tragic situation. The benefits of innovation accrue to the individual patent (or copyright) holders and the loss of potential benefit is suffered by the whole of society. The solution is inverted as well. While the answer to air pollution is to legally impose some of the cost of the action on the individual benefiting from it (either through fines, or threat of other legal sanction), the answer in the case of stifling patent and copyright law is to simplify and reduce the power of such protection to a point where the public good, or Common is, on balance, enhanced (while the innovator is still rewarded).
This is understandably dangerous ground and reminds me of a discussion concerning Sin (an Optimate favorite!) which I had with Tacitean and then Prometheus the other day. I contended that Sloth was the most fascinated of the "deadlies" because it alone held that it was not enough simply to resist doing bad things that you wanted to do, but that it was also a sin NOT to actively pursue good. I chose to interpret this as a call to develop one's gifts as best you can and to contribute not just to your own well being but to society, but this is and interesting area, since it borders on some of the flawed pictures of human nature that led to such disasters of Communism.
As always Fire Away!©
posted by Chris @ 2:49 PM
5 Comments:
I'd say the bigger issue of the two is definitely the restrictive copyright law. Having no patent system at all isn't ideal, but doesn't discourage innovation either. However, with the current system allowing for large corporations to fill out paperwork, produce nothing, and then sue other people for creating things with similar traits, THAT discourages real innovation. Thus the betterr idea, in my opinion, would be to throw out the patent system alltogether and replace it with a grant system. You've got an idea, great! Here's the federal funds to create it, contingent on actual efforts troward production. It's a hell of a lot more useful for technology than just allowing everybody to camp out at the expense of people who would actual make something.
If the choice were between what we have now (or worse) and a no patent system at all, then you might be right. But I'm not certain. People might game the system in an even more brutal way (breaking into your house and stealing your computer or notes) were there no protections whatsoever. However, niether our current system, nor a complete lack of patent law provides the optimum benefit to society. What we have is the difficult process of trying to tweak the protections to maximize the overall benefit to society.
As for grants as a replacement for patents, imagine the following. I have an excellent idea for a new sort of prosthetic arm that helps amputees regain far more of their lives then ever possible before. The government rightly sees this as worth a grant and I set to work. It takes me seven years of reasearch and design and work at the end of which, some clever chap gets a hold of one of one of my prototypes and backwards engineers it in 3 months and beats me to market.
In this case you might argue that the pubic still got access to this amazing new technology. But other than the pride of having created the new device, I will be out in the cold.
But in all liklihood, this would not occur at all, since the fear of having the fruits of my work snatched from me at the last minute might disuade me from ever bothering.
There is a further problem of the government being the final arbiter of which technologies are worthy of a grant and which are not. Certainly they will make the right choice sometimes, but where people's monetary interests are involved, there will never be a fair distribution of the goodies. Better to offer people legal protection if they have good and useful ideas, but leave developing those ideas up to the market.
Or perhaps not. But what is clear to me is that we should be quite deliberate about what sorts of things can be covered by patents. Some things are obvious, like devices, but others are less obviously deserving, such as software features, or business processes, or sports moves. It is good to acknowledge that more and more, the most valuable economic assests in the world are ideas, and that some system of intellectual property rights needs to exist, but that acknowledgement should be coupled with another, that because of this, valuable ideas cannot be allowed to be hoarded like gold and then used to twart innovation for the benefit of an individual or single corporate entity.
I would still like to hear more details on the sort of grant system you are proposing Bookie. Perhaps I have misconstrued its working, or am just incapable of seeing its efficacy.
Well, I guess what I was thinking of would work similarly to the good parts of the current patent system (objectivity, protections) but prevent camping and the other negative aspects by financially assisting the proposed inventions/concepts, and then protecting them once physically completed.Possibly they could even protect during development, but if a certain deadline passes without significant efforts towards production being met, then the government can then make up for their losses by selling the idea to the highest bidder. Maybe not on that last point, but I'm still working on it.
Oh god, copyright laws.... For those of you who don't know, I work on a reality television show where part of my job is to obtain releases for anything in the family's home that could be considered a copyrighted work. This has, in the past few months, included stuffed animals, t-shirts, wristbands, plates, and tattoos. Anyone want to know how much fun it is to try and track down a shady tattoo artist and ask him to sign a legal document? Tons of fun.
Anyway, I know my rant is a little off-topic, but I believe part of the reason patents and copyrights have gotten so far out of control in this country is because we're so incredibly lawsuit-happy. The reason I have to clear a tattoo on a reality show contestant? Because David Beckham is getting sued for royalties by his tattoo artist for being in a Nike ad with his tattoo prominently displayed, and nobody has thrown this case out of court yet for being ridiculous. There was an article on slate last week about the Holy Blood Holy Grail/Da Vinci Code court battle that was excellent, in that it pointed out that Holy Blood Holy Grail had profited a lot from Da Vinci Code's using the 'facts' they present, and it seems rather stupid for them to sue now, except that they know the movie's coming out soon and they want a piece of it.
Anyway, until the US court system starts cracking down on frivolous lawsuits, everyone's always going to use the patent and copyright system to get some extra bucks, as well as protect their own asses.
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