March 02, 2003
Intellectual Property - Prosperity or Preposterous?
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea..."Law approximates intent. See my first three paragraphs here. Laws age. Intent is forgotten. Reality shifts, law is repurposed; applied to a new paradigm. Law becomes perverted.- Thomas Jefferson
I've been doing a lot of thinking about patents. Patents are for when someone comes up with an invention. It was for the inventor to have a limited monopoly on the idea behind the invention and restrict others from being able to use the idea. Jefferson was named head of the patent office in 1790 as a result of the Patent Act of that same year.
... which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.Jefferson was inherently biased against any scheme that created a monopoly of an idea. He believed that ideas should be released to the public for the common good. He came to support the patent office because he found a way to reconcile its existence with his views on invention. His philosophy was to use the patent system to encourage invention, not to protect or restrict them. The utility of the patent office was to be of equal benefit to both the inventor and the general public.
Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.He agreed that inventors should have "full rights" to their inventions, but he worried about patent abuse, and the possibility of patents delaying the arrival of inventions to the general public. He insisted that an invention had to be useful, and not a repurposing of something already invented. He focused on application, not theory. He personally reviewed every patent application that came through the office while he was its head.
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Jefferson became in favor of patents when he witnessed how the extra protection enabled inventors to feel safe in coming forward with their ideas.
So, time passed. The patent application procedure was made automatic, then was given more personal review, and was tinkered with several times over the centuries. It didn't scale well. Today we've got a system with crazy patents like a method to shine lights on the wall so cats will chase them. A slashdot search for patents will yield pages of questionable "inventions".
Part of the problem is software patents. To be fair, software patents aren't themselves the problem - software can legitimately qualify as an invention. But "software" is too abstract to be legalized as a patent family. Software is language. Sometimes language can be a song or a poem. But other times it can be a label or a description. Software can be an invention, but it can also be merely an idea. Ideas are not always inventions.
This blurring distinction has led many people to protect mere ideas, even abstract ideas, as intellectual property. A system to link documents to other documents. A system to participate in an online discussion board. Oftentimes these patents are extremely similar to other public implementations that have been in existence for years.
Questions for musing:
- Are patents inherently bad? Compare and contrast today's patent philosophy with the original intent of protecting inventors and contributing to public utility.
- Should an idea unattached to device, implementation, or manifestation be enough to make you any money?
- Despite being head of the patent office, Thomas Jefferson never applied for a patent for any of his inventions. Did that make him unwise? Would it make him unwise today?