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 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.

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.

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)