Intent of Patent Protection

Doug Bailey (
Tue, 22 Dec 1998 16:50:25 -0500

Eliezer Yudkowsky wrote:

> Limited patent rights maximize innovation. After 20 years,
> it is assumed that your patent would have been obvious in
> any case - that it would have been invented even without a
> patent system or a patent office or any other motive to make
> a research investment. The patent office gives you a 20-year
> monopoly on the theory that you could get roughly the same
> amount of time by holding a trade secret; thus there is no
> loss to you from revealing your invention. Or to put it
> another way, the government (the public?) gives you a 20-year
> monopoly in exchange for having the invention 20 years earlier.

I don't completely agree with this analysis of the theory behind patent law. While the intent behind patent law is to increase innovation, I have never seen any optimization techniques applied to the patent period. The recent change from 17 to 20 years was to align U.S. patent law with GATT provisions. There are no public policies that have the objective of maximizing innovation or purport to maximize innovation.

Additionally, in my reading on the theory behind patent law, I have never come across the idea that there is an inevitability to any kind of innovation. Your statement that "it would have been invented even without a patent system" implies such inevitability.

The purpose of patent rights is to foment and accelerate innovation by creating a mechanism to generate future cash flows to the inventor. Without this mechanism, no research and development project would ever make it past the CFO of any company. Many innovations might never be achieved without patent protection to justify the initial investments in R&D.

Doug Bailey