Why do we have patents?

Talk to just about anyone in the computer industry today, and they will agree patent law is flawed. Patents, in general, are not serving the purposes for which society supports them. Society supports patents for essentially three somewhat conflicting purposes.

1. To protect the value of inventors labor.
2. To encourage potential inventors to invent.
3. To encourage the free exchange of ideas.

The first goal is straightforward. Society supports this goal not just because any individual might be or become an inventor, and thus desire protection, but because in an indirect fashion it encourages the final two goals. Even today, this goal has some degree of success. Patent law itself is fairly explicit in protection. However, the real value of these protections is not as great as they seem. Schemers, trolls and other miscreants who exploit the patent system complicate the problem of enforcement. Legitimate claims fight an upstream battle while illegitimate claims exploit loopholes and extort settlement monies. In the realm of software, where patents are the most controversial, the value of legal patent protection is somewhat of a joke. It exists, but most companies acquire patents to protect themselves from illegitimate claims, rather than to defend a legitimate claim.

Whether or not patent law helps or hinders the second goal is more questionable. While there is some positive trickledown from protection, there are also a number of negative influences. If every invention were entirely unique, we would have nothing to worry about. However, not much is entirely unique these days. If a discovery or invention is not directly building upon the shoulders of others, it at the least incorporates some of the components of other inventions. Every one of these relationships becomes a liability to the inventor of today. The complexity, cost and risk involved in dealing with these liabilities is rising due to misuse of patent law. In the extreme overlapping rights create a situation in which an inventor finds it nearly impossible to put together the set of rights necessary to support an invention. This has been referred to as the The Tragedy of the AntiCommons.

The third goal should have been assisted by the open publication of patent papers. In theory, inventors could use this information to innovate further. If you have ever read a patent application however, you will know how far from this ideal we really are. Patent applications and grants are very often an undecipherable set of nearly meaningless high-level claims. At least that is my experience with software patents; it may not apply across all fields. In some cases, a technique called Submarine Patents has been used to entirely conceal all details for long periods.

None of these problems are new, so why am I writing about them? Well I have some ideas (another), and in the next couple of days, I will get them out here too.