From: Christian Weisgerber (naddy@mips.inka.de)
Date: Sun Mar 09 2003 - 10:38:52 MST
Dickey, Michael F <michael_f_dickey@groton.pfizer.com> wrote:
> I would certainly be interested to hear what extropians think of Patents (at
> least, mechanical innovation patents)
Coming from the IT/software/Open Source side of things, I am extremely
skeptical of patents. The patent system seems to reflect a 19th
century outlook on a mostly static, mechanical world which is wildy
at odds with a fast moving 21st century world increasingly dominated
by software and information.
One of the basic themes on this list is progress and in fact the
accelerating speed of progress. If you measure the subjective time
of a patent grant not in years but by the amount of change taking
place in the meantime, then the current fixed n-year objective
lifetime means that patents are running for an ever increasing
subjective time. Back in the 1800s, a time to market of a decade
may have been realistic. Nowadays, a company may not even remember
its products of a decade ago. Current patent lifetimes of ~20 years
are an eternity.
A patent protects against a competitor simply stealing the inventor's
blueprints and outproducing him. (There are also more specific
laws against the theft of business secrets, which I'll ignore here
for the sake of argument.) I think most of us consider that a good
thing.
A patent also protects against a competitor seeing an invention and
reproducing it more or less independently. Once you know that
something can be done, figuring out how to is usually less difficult.
I think the virtue of this sort of protection is not so clearcut,
since we are not talking about blind imitation but about people
being partly creative in their own right.
A patent also protects against a competitor coming up with the same
thing entirely independently without ever having heard of the
original invention. It effectively screws out the second inventor
of his investment. And as progress keeps accelerating, such parallel
development becomes more and more common. I think this type of
protection is objectionable. Of course, in practice, it may be
impossible to prove whether a design was imitated or arrived at
independently.
Nominally, a patent protects a single invention. This may have
been true in the steam age, when some tinkerer invented a great,
fuming foobazler. Nowadays you have to consider that the patent
protection effectively also reaches out to anything that is based
on a foobazler or includes a foobazler somewhere as a small part.
A patent removes a whole path of development from that available
to the competition. Again, this wasn't such a big issue when
progress was slow, but with the current and accelerating turnover
of technology this is an ever growing obstacle to further progress
in the direction covered by the patent. Obviously this is even
worse for broad or generic patents that cover methods of doing
things rather than actual devices.
If you talk to some crypto people, they will tell you that the RSA
patent was rather more successful in preventing widespread adoption
of cryptography than US export regulations. You may also have heard
of talk in Green circles of acquiring patents with the express
purpose of obstructing biotech research.
Patents have become a part of business, but in ways that do not
deal with protecting the inventor's investment. There are so many
patents that have been granted that it is virtually impossible for
engineers to check whether their product violates any of them.
Corporations recognize this and try to build comprehensive patent
portfolios for offensive and defensive action. That competitor
there cuts into your market? Sue him for patent infringement.
Simply by being in the same market segment he is bound to accidentally
run into your patents. Somebody sues you for patent infringement?
Countersue them, they're likely to violate some of your own patents.
Big companies, who hold numerous patents, have little to fear. With
their fat portfolios they negotiate cross-licensing contracts with
the other big players. For small companies, upstarts, the much
touted garage inventors, the perspective is very grim. Patents
that cover only part of a complex product or are so old that people
already consider the idea as common knowledge can be used as a
weapon to suppress competition.
A favorite are submarine patents. Take out a patent on an invention
that lies in the mainstream of technical development. Don't develop
any product, just sit back and wait some years. By now the market
is full of products that, unbeknownst by their creators, infringe
on your patent. Even better if it has become part of some standard.
Have your lawyers write threatening letters and watch the royalties
rolling in. This looks like a perversion of the ideas behind the
patent system, but it is neverless sanctioned by it.
Then there is reasonable licensing. In theory, a patent holder is
obliged to license his invention to competitors at a reasonable
fee. In practice, it is not clear what a reasonable fee constitutes.
And I wish you good luck enforcing this of a patent holder who
simply doesn't want to grant any licenses. In the times when an
invention equalled a product, this was of little concern. But
nowadays an invention may affect thousands of products and a patent
may keep them from coming into existence.
As an Open Source person, "reasonable licensing" translates to
prohibition for me. Since I don't charge anything, there is no way
I could recoup even a minimal license fee. Patents assume that
every invention and use of an invention takes places in the setting
of a for-profit business. The patent system punishes the Open
Source world for stepping outside of this traditional setting. A
patent effectively removes an invention from the Open Source economy.
In the Open Source setting, each patent destroys a piece of (potential)
progress and the path behind it. In this context, patents are
unmitigated evil.
In short: Although I can understand the moviation behind the patent
system, I consider it at best as of dubious value and ill-adapted
to the times.
Like other posters in this thread I come from a particular background
that necessarily influences my views. For example, I have no idea
whatsoever how the pharmaceutical industry operates and I can't
judge the value of the patent system in that context. In the
computer industry, patents help the biggest players to establish a
chokehold on everybody else and kill diversity and progress.
-- Christian "naddy" Weisgerber naddy@mips.inka.de
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