Tag: dead horses

What we talk about when we talk about patents III

Granting patents is society’s way of saying that certain devices or processes are original; implicit in the system is the idea that novelty is to be especially rewarded. It’s an inherently individualistic, anti-cooperative approach to innovation. It’s also one based on the romance of competition as the basic mechanism of progress. Americans have great faith in the adversarial: our government, our legal system, our economy are all based on the idea that the clash of interests will result in great laws, or justice, or prosperity. But the ugly truth is that competition doesn’t only produce better things, it produces better ways of eliminating your competition.

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And to be honest, there aren’t a lot of lightbulbs waiting to be patented. No one is going to find a seventh simple machine. Invention isn’t so much a process of aha! as it is of hmm. It’s about looking into the current state of technology and finding a good place to continue. This is particularly true when it comes to software development, and it’s interesting that developers themselves have been vocal opponents to the idea of software patents. But holders of patents are, by and large, not inventors but corporations, and for them the main attraction of patents is to build up an arsenal of potential lawsuits or to protect themselves from said lawsuits. 

Back in the 1970’s there was a Parker Brothers game call The Inventors in which players would purchase zany old-timey inventions, patent them, and then seek royalties. Amusingly, the inventions themselves were all of questionable value and completely interchangeable from a gameplay stance. One concern was that until “patented” the inventions could be stolen by other players. So the lesson was not that patents help to bring useful ideas to the market so much as they are chips in a legal game. While I don’t think satire was the goal of the game designers, they got this all pretty much on the nose.

What we talk about when we talk about patents II

America loves the single guy against the world. There’s one story that colors our ideas about invention and innovation more than any other, and that’s the story of Thomas Edison. The tale of a telegraph operator picking himself up through ingenuity to secure more than 1,000 patents and usher in the electrical age is charming and magical, to the point that the light bulb itself has the symbol of sudden insight. Of course the problem with this story is it’s mostly crap.

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Not that Edison wasn’t a genius, because he was; not because he didn’t oversee remarkable innovations, because that’s true as well. But the majority of his work, including the development of a commercially viable incandescent bulb, was simply incremental improvements on other people’s ideas, carried out by an army of work-for-hire inventors who were treated with varying degrees of fairness. Edison is famous for his poor treatment of Nicolai Tesla, and then subsequently fighting a wrong-headed battle with his former employee over whether electrical distribution should use AC or DC current. But Edison had an even darker side, a ruthless side. He vigorously protected the copyrights to his motion pictures even as he duplicated and exhibited Georges Méliès’s A Trip to the Moon without compensation.

Edison was a complex man with a mixed legacy. But my point here is he was not solely, or even primarily, responsible for the various patents he acquired. Nonetheless, his legend lives on in the way we think about patents: the solitary inventor with original insight needs protection from the “theft” of the fruits of his genius. He is rewarded with riches, we are rewarded with innovation. It’s a pretty story, and it would be harmless enough, except that it’s riddled with false assumptions about the nature of innovation and the importance of originality. It’s this last myth—that purely original ideas are to be valued above incremental improvements, that purely original ideas exist at all—that has done the most damage to the way that patents are awarded and rewarded.

(to be continued)

What we talk about when we talk about patents

Last week’s This American Life show on patent trolls did an good job of explaining some of the more vexing problems with the patent system in a way that a disinterested layperson could understand or even find compelling. One of the hard things about being a wonk about intellectual property is that the subject is so full of nuance and history and theory that you can’t really form a good soundbite.

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 Patent trolls are a pretty easy target for scorn. Acquiring as many poorly-defined patents as one can not to produce goods or services but to sue other producers when alleged violations take place is pretty reprehensible even to the most disinterested and makes for a good story.  Even if you have no idea what prior art is you can feel indignant on behalf of the poor programmer who slaves away on his app only to be smacked with a lawsuit at launch because someone else says they invented the idea of icons. But if you want to move beyond complaining about a specific bully to talk about why software patents themselves make no sense, then you have to discuss the history of logic gates and difference engines and virtual machines and what algorithms are and oh god just kill me already.

Ultimately I think that the only way to get a layperson to think critically about patents (and about copyright and trademarks) is to ask what it is we want patents to do, and what it is they’re really doing. Because it’s not about violators stealing something that belongs to someone else. It’s not about property at all. The constitutional basis for patents and copyright is the promotion of science and the arts, and we should judge our system by the question: are we producing more and/or better ideas with the system we have in place? Would we have more and/or better inventions with a different system—or even with none?

(to be continued)