On Innovation: An Argument Against Patents

Why do we in the U.S. on one hand grant patents and on the other pursue Anti-trust litigation? Is there not a very basic conflict of interest here?

How could we provide the legal magic beans that will grow only to attempt to destroy the giant they may lead to?

The multitude of problems regularly cited about the patent system seem to conflict. These problems are usually cited by smart and well-respected persons yet they do conflict. For a system as old as the patent system it is amazing to still find objections to its fundamental operation. In fact, the courts to this day seek to fix what seems to have always been broken or broken from previous fixes. In software development we typically recognize this behavior as kludge—fixes upon fixes which then themselves need fixing.

Should issue not be taken with the very idea of patents? By definition, patents seek to “protect” its holder from others “stealing” their idea. Users typically state that without patents there would be little incentive for investors to invest in an idea because their profits could be threatened by the theft of the invention. Is a patent not a train ticket on which no one else may ride? Does not each patent issued birth a virtual monopoly ready to be vested and grow real? What protects an inventor from an established company ready to steal, produce, market and then sell their invention? Shouldn’t the inventor be paid for the idea?

To be an inventor is to work like everyone else. An inventor must invent continually or choose another line of work. A bartender must serve drinks everyday or they cease to tend a bar. Patents stifle innovation not protect it. Can anyone say that the current patent system protects the inventor when it most matters? Indeed, when an idea is so great the patent system is used to justify legal turmoil against the inventor—unless the inventor has the means to defend against such systematic attacks.

A good inventor must invent not only the original idea but also a scheme to see that idea to market, this may involve others and with it more risk. Yet is risk not inherent in business? If an inventor has no desire to conduct the business of seeing their invention to market then they necessarily must offload that responsibility to someone that does. It is always possible for the idea to be stolen and the inventor left out in the cold–that is the risk an inventor chooses to accept when creating such a career; for it is much easier to take an idea than a factory or a multi-million dollar ad campaign.

There is no excuse to stifle the development of ideas. If an idea is so great and no patent can be made, investors will still invest believing instead they have the jump on a profitable market. It should truly be about timing and not monopoly. Can anyone honestly say that without patents we would not have telephones, cars, electronics and the like? We have these things not because someone’s IP was protected but because the market ultimately wanted these things.

Inventors should invent and in doing so should establish reputation such that a company may choose to steal their idea but in doing so may burn a larger bridge that a competitor may be all too happy to protect. Good inventors like good bartenders should be paid for the quality of the product they serve. The dream of one big idea to get rich will always be possible through foresight, planing and good timing; yet, this dream should not be maintained by a system that proposes to protect the formation of monopolies that ultimately stifle growth.

Plain and simple, a patent keeps others from developing on ideas that can always be traced back to the public good. We are forever standing on the shoulders of giants, no one is born into this world with the next great patent in their mind. It is through growing, learning and observing the public space that ideas may find minds to infest. Money should be made by those who invent but this should not be under a system that proposes a monopoly on the idea as the solution yet instead on the merits of foresight in the idea.

2007.08
Shanghai, China

P.S. I had forgotten I wrote this until, while perusing my incomings, I came across this post (blogspot, another site China blocks).