In whose interest is the current system
In Whose Interest is the Current System
If there are so many problems with "Intellectual Property Rights", it is amazing that supposedly free humans have allowed the establishment of such a system in the first place. Some of the reasons have been given in the discussion of the historic origins. More important today is the question how such a system can stay alive. There must be vested interests at work, which actively maintain such an unjust system. Uncovering these mechanisms is important if we want to change the system.
I will advance my personal hypothesis here, and I hope it does not sound too paranoid. I will single out one particular profession, which I believe is largely responsible for the mess. It may sound as if this profession was actively conspiring against the rest of us. However, probably a substantial fraction of this activity is usually not explicitly or consciously articulated. On the other hand, I have heard reckless and irresponsible statements from some representatives of this profession, which only confirmed my suspicion. At the same time, I will try to describe the system-inherent problems with patents which make them economically unattractive, in addition to being unjust.
As far as I can tell, the only party in this copyright and patent game, which consistently benefits from the current situation, are the "Intellectual Property" lawyers. To begin with, such lawyers are actively trying to promote their "services", strongly encouraging companies to patent as much as they possibly can, arguing that this is necessary because everybody else is doing the same thing. This is easily extended to a full scale scare tactic, painting dark pictures of other companies plastering the landscape with patents, disabling technology access for the client company, unless the client launches a pre-emptive strike first. It is also certainly the case that whenever a company or inventor asks a lawyer whether one of their inventions might be patentable, the lawyer is of course never going to respond "No, it is not." The only way lawyers get business and can charge hourly rates is when they accept the "invention" claims, no matter how dubious and trivial. It is even better for the lawyer if it is quite difficult to sneak the patent through the patent office, because as this process drags on, more hours can be charged to the client. Because the cost for filing a patent is not usually prohibitive, this first step is often relatively easy to take for a business.
However, once the patent has been successfully filed, the worries are far from over. On the contrary, then the problems just have started. Brochures of law firms explain the next steps. Getting a patent only makes sense if the intention is to block other people from using the invention. This means that the market needs to be policed for potential infringers, which need to be reprimanded, and sued if they do not respond favourably. It is necessary to constantly pursue this policing and to relentlessly enforce the patent, because otherwise, the validity of the claim could be lost. This policing activity is also still fairly low cost, if one does not mind regular legal bills.
The big problem arises when an alleged infringer does not agree to stop using a technology, and is not willing to enter a licensing agreement. It is then necessary to sue the infringer. This situation is almost certainly reached automatically at some point. Littering the landscape with patents has as a necessary consequence the precipitation of many law suits. After the lawyers have carefully prepared the ground with landmines, they can relish a rich harvest. Needless to say that getting sucked into such an ordeal is extremely expensive, for both sides of the law suit. But again, the only party here that will consistently and always be paid fat fees are the lawyers. Everybody else pays their bills.
Duane Northcutt has remarked [personal communication, 1995] that "... a unique situation makes this possible -- the fact that lawyers are the only group that provide both supply and demand for a service. To my way of thinking, this allows this positive-feedback effect to take place, where the very presence of lawyers demands additional lawyers to be there, and so on, without any counterbalancing force to limit it." On top of that, one can observe that they shape the law too. No wonder is the legal scene totally out of control.
Does the current scheme make much sense for companies, and for the economy as a whole ?
Individual Companies
In technology companies, management has a number of options available to build a healthy position in the market place. Given limitations in the resources, trade-off decisions have to be made regarding allocation of money, so that the best results are yielded, in terms of earnings. An important investment is in research and development, to develop new technologies and products. Constant innovation is a necessity in high tech companies.
When that effort has successfully yielded valuable results, the question arises whether it is worthwhile to patent them, in order to exclude other people from using or reinventing the same techniques. This is commonly called "protecting the investment in research", to gain an unfair advantage over the competition. An alternative option would be to not bother with all this legal stuff, and to ensure by other means that the product can obtain a large market share. This would involve a combination of rapid product development to ensure being first to market, creating a really well-done and superior product, and using well-thought out marketing strategies to satisfy the needs of a large potential customer base.
Which of these two approaches makes more sense ?
The legalese way would be to try to corner the field by filing as many patents as one possibly can, carpet-bombing with claims as broad as one can get away with. This requires a substantial expenditure of legal fees. Afterwards, to get a return on this "investment" in patents, it will be necessary to recklessly pursue potential infringers. This will tie up many key researchers in court rooms (and in helping to write patent applications in the first place), instead of letting them pursue what they are best at, namely research and development.
Companies should stop wasting precious money on patent attorneys, and instead use the resources to make a technically superior product and to build a stronger presence in the market. To stake out a firm position early in the market, it is not necessary to have patents; on the contrary, that is a drain of valuable resources better invested in a more fruit-bearing fashion. Innovate, don't litigate ! To protect your original ideas as prior art, the best way is to openly publish them in research journals. This additionally is terrific advertisement, if you can point out that your company and products are at the forefront of innovative research, as opposed to being backed mainly by a lot of legal restrictions that hinder the users in every conceivable fashion. Note that a few key technical innovations are not going to be the only or even major part of your product. So much work is necessary to get all the little details right, to make the product intuitive and easy to use, to have good customer service, etc. Publishing the main key innovations in no way "gives away" your advantage if you give care to all the other implementation and business issues, which are necessary anyway for a successful product.
The Whole Economy
If the patent system were abolished, in the long term, the following beneficial effect would occur. Interested parties will pay individuals or teams to solve particular problems, because they need the solution for a product or the like. Because of the increased accessibility and fluidity of information that the lifting of the restrictions would imply, this would mean essentially to solve the problem once and for all, and not only for funder's own (monetary) benefit, but for all of humanity. This makes much more efficient use of the capital of brains that we have available on this planet. There are too many important problems that are in desperate need of good solutions that it is utterly wasteful to dabble around aimlessly by repeating the same, already solved work. This repetition is mandated if one has to work around patents in order not to infringe upon them.
This scenario will possibly provoke a response similar in flavor to the exclamations and fears of workers in manufacturing, that their jobs become useless and get replaced by automated machinery, which would lead to wide-spread unemployment. Yet nowadays, in the age of fully automated mass-production, many more jobs have been created in other fields under healthier working conditions. It is certainly true that many software providers may get laid off if their useless service of reinventing the wheel over and over is no longer needed. But it will free their minds to be put to use for working on yet unsolved problems. And the overall benefit to humanity will more than outweigh the temporary friction.
Today's protectionist situation feels like over-grazing the same old grasslands to squeeze out that last little juice-droplet while innovating as little as possible. This mindset is rather counter-productive and results in a stagnation of progress, despite pressing global problems. What is needed more are incentives to discover new grass-lands, to search for pathways where whole new and fertile territories open up, that contain a lot of exciting possibilities. These opportunities are constantly present in front of our noses, just waiting to be discovered, if we are actually on the lookout. There is a long way to go until we have reached the final, ultimate, and non-improvable limits to complexity (which would render us all terminally jobless :-).
For a number of reasons, patents benefit mainly large companies with huge patent portfolios. These corporations actively use them to build up "high barriers to entry" for potential competitors. This affects small companies much more negatively than larger companies. Small companies are almost certain to require licensing somebody else's patents, which adds complications to the tricky business of starting a new company in the first place. This reduces significant and revolutionary innovation substantially, which usually happens at small start-up companies. This is one of the reasons why the government's patent system does not achieve its intended goal of truly increasing innovation.
So, in conclusion, whatever resources are drained off by the "Intellectual Property" system, which could have been put to better use for research, development, and marketing, do not produce useful results and products, and are lost and wasted, not contributing constructively to the wealth of humanity.
How is the current system being reinforced ? The only party that really benefits from the current situation has a strong incentive to maintain it. And so lawyers are vocally promoting their views. For everybody else, the issue is a nuisance, and vocally defending freedom takes away precious time from real work, just to fend off something unpleasant. If one takes a look at who writes the legal columns in computer magazines, it is always lawyers, for whom this is good advertisement opportunity, and they never question the validity of the current "Intellectual Property" system. [1]