From: Charlie Stross (charlie@antipope.org)
Date: Tue Mar 14 2000 - 02:50:26 MST
On Sun, Mar 12, 2000 at 02:04:17AM -0800, James Swayze wrote:
>
> As a hopeful inventor can someone explain to me why patents are considered bad?
> In a free capitalist society shouldn't an individual profit from their hard won
> intellectual efforts? Is intellectual property worth less because it springs
> sometimes so easily from the creative mind? Perhaps only manual labor is
> considered of any value. Maybe I should tell my plumber I'm against paying for
> his unique efforts and he should create an unleaky faucet for me for free?
It's not that patents are bad per se, but that our framework for dealing
with them is bad.
For starters, a major culprit is the USPTO. Their framework gives patent
examiners a financial incentive for passing patents, regardless of merit;
they seem incapable of discerning even trivial prior art in software
and business practice patent applications, for example. (As witness the
patent on "windowing" as a Y2K solution that they granted last year --
a technique in wide use since the mid-seventies!)
A lot of the patents they grant are, incidentally, invalid in the rest
of the world: partly due to procedural differences, but also because
they grant patents on things that elsewhere in the world simply aren't
patentable. Like fundamental algorithms.
A second problem is the duration of patents. Twenty years, or seventeen,
may have been right early in the 20th century, but in terms of the
information economy it's equivalent to granting patents that last for
more than a century; the pace of change is ridiculously fast.
When you put "allow over-broad patents on trivial or obvious applications"
together with "excessive duration" and "don't bother checking the prior
art properly" you get a horrible gridlock. Instead of protecting inventors
and enabling them to reap the rewards of their work, you end up with a
system that forces inventors to wade through a mire of litigation, prevents
people from making free use of obvious techniques, and promotes an arms
race among company patent lawyers. This is a _distraction_ from invention
and innovation, not an encouragement.
At the very least, Bezos has a point -- cut the duration of patents in the
business and software fields, allow public review and challenge before
finalizing them. I'd also like to see some mechanism that would allow
non-commercial or non-profit-making entities to use patented software
developments without encumbrance, as long as there is no potential for
infringing on the patent holder's profit-potential -- a "public good"
clause equivalent to the "fair use" get-out in copyright law. But whatever
the remedy, the diagnosis stands: the current patent system is broken
and needs fixing.
-- Charlie
This archive was generated by hypermail 2.1.5 : Fri Nov 01 2002 - 15:27:22 MST