Patents – Pathetic Fallacy

Red pill blue pill

Friend and ex-coworker John Siracusa—the man who taught me to always validate my web markup—has a podcast, Hypercritical, ostensibly about Apple Computers but increasingly about whatever he wants to complain about. Last Friday’s episode covered a variety of topics, but of interest to me was his discussion of patents, beginning at 1:16:30. Examining the mess that is the modern patent system, he talks about how as a programmer he has long been against software patents, but that as time has gone on he’s become against process patents until he’s arrived at the point that he sees all patents as a hindrance to innovation and commerce.

Siracusa isn’t the first to advocate scrapping patents altogether (here’s an annotated treatise if you’re interested in delving deeper), and I’m not going to summarize his arguments, but there was one point he raised to which I wanted to respond. Siracusa mentioned that he thinks the strongest case for patents was pharmaceutical companies and their need for an incentive to foot the bill for the research, development, and clinical trials. The argument goes, why would anyone front so much money to bring a drug to market without the assurance that competitors wouldn’t swoop in with their own versions of the product?

This case for patents carries emotional weight—when it comes to potential life-saving treatments, who wants to stand in the way? But if we can view the argument with a dispassionate eye we can see that drug patents fail in ways characteristic to the patent system in general. Patents incentivize treatments for the most lucrative medical problems and not the most pressing ones. One of the most devastating diseases in the world in terms of the number of people affected and the severity of suffering is malaria; however, it’s a disease limited to the tropics, and unfortunately the populations most hit are not markets with deep pockets. On the other hand, we sure do have a lot of erectile disfunction meds available these days—because boner pills are by definition made for sale to rich old men.

The fact that business models are built around the pursuit of exclusive products also leads to avoiding incremental innovation, even when that might be the most expedient course. There may be alternative therapeutic uses for existing medicines, or there may be more effective formulations, or better production methods, or new modes of delivery—but when R&D is focused on what is patentable, obvious and fruitful research will be passed over. In the absence of intellectual monopolies, companies might turn to more focused improvements and diversification as a way to distinguish themselves, instead of looking for the next big payday.

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.

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.

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)