A patent is a monopoly granted by a government entitling the holder to control all economic exploitation, in the government's jurisdiction, of an idea, discovery or invention. Patents are granted in exchange for full disclosure, thereby ensuring that all benefits will be available to everyone once the patent expires.
There are international treaties by which governments agree, each in its own jurisdiction, to grant patents mirroring those granted by other signatories to the treaties. If they did not, patent holders in one jurisdiction would still be at liberty to apply for patents in others; but would have to go through the full bureaucracy in each jurisdiction, which would be expensive. Such treaties, reasonably enough, endeavour to automate this process, thereby making patents effectively global in scope, rather than limited only to one jurisdiction. Consequently the privilege bestowed by a patent – the authority to regulate the activity of others – falls no longer under the control of governments, nor do they depend on the consent of the governed.
Governments, at least those of a democratic stripe, exist to serve the best
interests of those they govern. It has been widely accepted, since the liberal
and democratic movements whose heyday was the eighteenth century, that those
interests are best served by as much liberty as possible
; in particular,
that liberal tradition which championed free trade
consistently declared
all flavours of monopoly to be inimical to the common weal.
Yet the constitution of the United States of America, drafted and signed by
several leading lights of that liberal tradition, makes provision for government
to grant monopolies to inventors for a limited time
; this they justified
on grounds that it would promote progress in science and the useful arts
,
in light of which we might fairly argue that the U.S.A. government's liberty to
make such grants only exists in so far as granting such patents does
foster such progress. The foundation of the argument that such grants achieve
this end is generally given to be that the promise of a monopoly in the
exploitation of their idea will serve as an incentive to inventors; both to
create and, having secured benefit therefrom, to communicate their ideas to
others.
For these and similar reasons, among others, many governments do grant patents. None the less:
It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. 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, 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. 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.
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.
Thomas Jefferson, in a letter to Isaac McPherson, August 13, 1813.
The rest of this essay is still somewhat jumbled (and long), but here's a road-map to its pieces, anyway:
Contents:
Aside from the strictly expeditious argument given in the U.S.A.'s
constitution, other justifications are given for patents: these generally depend
on some notion of the inventor deserving
to be rewarded
for their
invention, alloyed to varying degrees with arguments from
expediency (most usually: the promise of a reward will serve as an
incentive).
The senses in which inventors deserve
reward span a spectrum: at one
extreme, a moral sense that the invention is the inventor's property; at the
other, the practical need to cover the costs incurred in bringing the invention
to the public. The latter extreme is an argument from expediency, so I shall
return to it, below, when discussing costs and benefits. I am somewhat
skeptical as to whether anyone would believe in the moral extreme were it not
for several hundred years of there existing a legal notion of property to
acclimatize us to it: indeed, Thomas Jefferson made a compelling case to the
contrary. None the less, let me now address the matter, as I suppose it should
appear to those who do accept such a moral
argument.
Our monopolistic patent system serves, at least in one respect, quite contrarily where it comes to rewarding inventors: for similar enough ideas may come to many folk at roughly the same time, yet one of them shall be granted the monopoly which covers at least a great part of the others' ideas. Absent any attempt to reward them, each would have been able to reap some rewards by exercising their invention: but, when a monopoly is granted to one of them, even these natural rewards of the invention are only available to the other inventors with the consent of the patent-holder. Thus do patents deprive at least some inventors of the natural fruits of their inventions.
Furthermore, it is not at all uncommon for one invention to be covered by several patents: even if the inventor who pulled many ideas together does not patent the composite, anyone wishing to deploy the whole (even its inventor) can do so only subject to the consent of each holder of a patent which touches on the idea. In an era of rapid, and often incremental, innovation this is entirely routine. The whole may be of great value to the public weal, arrived at independently of each of the other patents, depend only in part upon only a peripheral variant on each patent's idea, yet it can only be used with the consent of all patent-holders. Even the inventor may be unable to employ the invention – for instance if even one of the patent-holders is opposed; or if the other patent-holders demand such high license fees that their sum exceeds the value of the whole.
No moral right to reward, above and beyond such rewards as nature bestows without aid, can possibly justify depriving inventors of nature's rewards. Thus, if a moral argument is to be used, it cannot support a monopolistic system unless it so restricts the circumstances under which monopolies are granted as to prevent such clashes. How can a moral right to reward, over and above nature's, serve to justify depriving me of the reward nature would have given me without the interference ?
There is no sense in rewarding an inventor
for anything that would
have been obvious to others – at least, not if the reward comes at any
cost at all to others.
When the proposed reward is monopolistic, one should also not grant it for
those inventions which would be arrived at by anyone of reasonable competence in
the relevant craft endeavouring to solve a problem which they might reasonably
have been called on to solve: for such folk may be expected to address such
problems and, independently reproducing the invention or something very like it,
be deprived of the fruits of their honest labour by the patent-holder. Such
inventions are formally classified as obvious
and, indeed, there is no
crisp boundary between them and the truly obvious
: the only difference is
the amount of time and effort that someone of ordinary competence must expend on
solving the problem.
Yet that time and effort is not irrelevant. As is often pointed out by advocates of rewarding inventors, a business will not embark on an expensive project to develop something useful if they cannot see how they shall be able to recoup the costs of developing it and make some profit besides. Once they enter the market, absent a monopoly on the results of that expensive project, their competitors shall be able to copy the fruits of the developers' labour and, by competing with them, drive down the price at which they can sell their product. The competitors' investment in the product is much smaller than that of the developers, so their costs are little more than the cost of production. Thus the original developers shall only be able to sell at a profit relative to the cost of production, leaving no slack from which to pay for the development costs. True, their competitors will take some months to come on the market with a competing product: but the customer will know this is going to happen, limiting the price the developers can charge to only moderately more than the cost of production.
For sufficiently expensive developments, the profits the developer can make in this interval will not suffice to pay for development. Knowing this will happen, businesses will assess expensive development projects as unprofitable, hence not embark on them; so that neither they nor their competitors shall produce such expensive mundane inventions. Some form of reward is needed to bridge the gap: yet a monopolistic reward would (particularly in the most deserving cases) deprive all but one developer of even the natural rewards of their invention. The answer, clearly, is to provide some other form of reward.
Indeed, from consideration of the case in point, the proper reward for inventions should reward those who have invested time and effort in the pursuit of solutions to a problem – though those who first produced a working solution must surely take the greater rewards, others deserve at least some reward if they can show that they too would have arrived at that solution, or if they indeed arrive at some other – albeit similar – solution soon after. The extent of the rewards available must, naturally, be proportionate with the extent to which folk make use of the solutions developed. In the absence of a monopoly, more use will be made of each invention and more incremental developments will be tried on top of each invention, so that the total benefit to be had here may well exceed that of a monopoly, even if it is shared.
It is commonly claimed, by those seeking to justify monopolistic patents,
that patents are no different from material property. I have absolute authority
over who uses my bicycle and how, after all: why should I not have similar
authority over who uses my
ideas and how ? The claim, however, does not
stand up to scrutiny.
First, as Jefferson points out (see above), ideas and material property are different. One cannot use my bicycle without depriving me of the primary use of it: yet all can use an invention without depriving the inventor of its primary use. Granted the inventor cannot make various secondary uses of their invention – e.g. demanding money from others as a precondition of use – save by depriving others of it: just as I cannot hire out my bike if another has taken it without payment. Further, the inventor would have to compete on an open market to trade in any results of their invention, without a patent – yet, still, the inventor is able to be a competitor in that market, retaining still the full primary value of the invention: whereas, if my bicycle is taken, I am entirely deprived of its value, both primary and secondary, not merely obliged to compete fairly with the thief in exploiting the fruits of its primary value.
Secondly, my authority over my material property is of strictly limited scope. My control over the use of my bicycle does not extend to control over your use of your car. Yet a patent-holder's control over exploitation of an idea does impede all aspects of another inventor's ability to realize value from ideas, in so far as those ideas include any expression (no matter how incidental, marginal or independently arrived at) of the patented idea.
It is impossible to come into possession of my bicycle save by taking it
from me: yet independent re-invention can perfectly readily bring others into
possession of my
ideas without any help from my part. No matter how I
come by a bicycle, I cannot be found guilty of stealing a dozen bicycles: but I
can come honestly by an invention yet infringe dozens of patents as soon as I,
in good faith, deploy it.
If I make a bicycle from raw materials, dug out of the ground on my own land, it is mine, no matter how similar it is to anyone else's bicycle. Yet an inventor, working entirely independently, has no idea whether they are even allowed to try out their invention until they have conducted an expensive patent search; even then, there may be patents whose validity or applicability is debatable – in which case, only by litigation can the inventor discover whether he owns his idea. Furthermore, one may own a patent on an idea, yet not be at liberty to actually use it – because it can be interpreted as building on some other patented idea. Though I come by my invention entirely independently, there is no limit on how many patents may obstruct my liberty to use it. Imagine a bicycle which you have built from scratch, yet a plethora of other folk hold unconditional vetoes on any use of it.
If I allege that you are using my bicycle, when you are not, it suffices
that you point to where my bicycle actually is: you have disproved my claim; if
I am using my bicycle, you have nothing to prove. If the bicycle you were found
using differs from my bicycle in any prominent way, no matter how many
similarities there are, I shall have a hard time persuading any court that there
is a case to answer. Even if my bicycle is genuinely missing and you were found
in possession of one very similar, it suffices that you discover the chain of
trade by which you, in good faith, obtained it – this will exonerate you
of any wrong-doing (while assisting the pursuit of any guilty parties), even if
the bike is found to be mine; and if the chain stretches back to a time when I
still had my bike, you have disproved my claim. Further, possession is nine
tenths of the law
spares you even the need to prove this: the mere fact that
you were in possession of the bike will bias the court to find in your
favour. Patents offer no equivalent to any of this.
Indeed, if we press the analogy, we shall find that there is a case to
answer even when I am using my bicycle, yours bears scarcely any resemblance to
it and you are able to show, incontrovertibly, that you yourself built your bike
from raw materials found on land under your control; I shall be able to deprive
you of the use of your bike for the many months it will take the courts to
decide the case; if this leaves you unable to attend the court, I shall have won
the case by default; the court may find that the bike you were using
is mostly yours but partly mine
, and oblige you to pay
me compensation
for your unwitting use of it. More bizarrely yet, the
court may find that you genuinely own the bike you were using, yet that you can
only use it with the consent of a veritable horde of other folk.
If someone wished to use my bicycle but was deterred by the constraints I
insist upon, they are at liberty to make their own bicycle: there is a free
market in bicycles, which imposes a limit on the scope of my demands (as an
upper bound: if what I demand is worth more than the cost of a bicycle, no-one
will agree to my deal; I may as well simply refuse them use of it). If I wish
to employ some invention which is, even marginally, touched by some patent,
there is no way out of it: I must either give up on using the invention or
consent to whatever the patent-holder chooses to impose on me. The sole limit on
their imposition is the unenforceability of some varieties of contractual
condition. The cost of exercising someone else's material property is limited
by the possibility of competition: no substitute being available for an idea,
there is no limit on what its owner
can demand for use of it.
Thus any analogy with material property is more tendentious than apt: it is an attempt to justify privileges while concealing how vast their scope is.
What of those who chose to publish their valuable ideas freely to the common weal ? Surely, if only expeditious arguments are considered, this deserves to be encouraged in preference to any deal in which the inventor imposes a cost on the public weal in exchange for their ideas; and any moral argument must surely honour generosity highly enough to, at least, be shy of hampering it.
The primary value in any invention lies in the benefits to be obtained simply by deploying it. The greater that value, the more slack the folk deploying it will be able to pay to others yet still be able to profit by it. Those who hold patents touching on the invention are able to be those others: between them, they get to divide this slice of the value of the invention. Each can demand what they will of those who wish to use the invention; so long as they collectively take no more than the total slack, deployers can profit by the invention. No guarantee exists that their shares will be proportionate to their patented ideas' contributions to the value of the whole: the only guarantee is that they will collectively take almost enough to make it unprofitable to deploy the invention – or more, for instance if some of the patent holders are opposed to the whole (but not so starkly so as to simply forbid use of the whole). The patent-holders' benefits will not be proportionate to the value of their contributions: they are apt to depend more on sizes of legal budgets.
In such a case, the generous inventor's invention will serve to profit only those who can establish that the invention touches on their patented ideas – no matter how abstrusely. The inventor's intent – to make the idea freely available to the common weal – is overcome; generosity is made to fail. The inventor can stake a claim to a slice of the pie, but cannot spare deployers from being pressed close to the margins of profitability or, even, forbidden to deploy. Inventors are given every incentive to stake their claims to slices of pie, but no incentive at all for generosity: this runs against both expediency and morality.
Indeed, while inventors are to be encouraged to invent, so also are others to be encouraged to deploy inventions beneficial to the common weal: yet the means used to encourage the former can be used to prevent the latter. An invention valuable to all may be suppressed simply because it would undermine someone else's profits who owns some patent which can be argued to apply to some part of the invention.
By way of an absurd (I hope) illustration: if a pharmaceuticals company with large revenues from palliatives for colds (or AIDS) owned a patent infringed by some part of a cure, they would be able to suppress the cure in order to preserve their trade in non-cures – which is inescapably more lucrative than the trade in a cure, even if they were able to extract the full value of someone else's invention by the use of their infringed patent. One may reasonably hope that in such an extreme case public outrage would prompt government intervention to restrain the patent holder: but the same process, in less emotive contexts, undoubtedly arises whenever an outmoded business model earns large revenues for someone capable of hampering deployment of its nemesis.
The U.S.A.'s constitution justifies the grant of monopolies on a strictly
expedient basis: in order to achieve a desirable goal, we shall allow this
undesirable thing (a monopoly) for a modest period. Arguments from deserved
reward
contain, equally, an element of expediency (for it is only by
assessing its effects that we can decide whether it actually serves to reward
what deserved it; and only by assessing the effects of an invention that we can
judge how great a reward it deserves). Other jurisdictions justify their patent
systems other ways: yet, in so far as their governments exist to serve the
common weal, any such system's costs and benefits should properly be
scrutinized. One should thus consider the efficacy of any such system, without
which no amount of justification, moral or expeditious, holds any
substance.
The benefits of a patent system are entirely overt: they are, principally, benefits to the patent holder at the expense of everyone else who would have been using the invention, once they came to know of it. The alleged benefit to the common weal (as opposed to the benefit to patent holders) lies in the claim that the promise of rewards will motivate folk to invent (a claim on which doubt has been cast by sociological experiment, but let this pass); crucially, though, this can only be a benefit to the common weal in so far as it strengthens the incentive already present, without any interference from without – namely, the benefits that one might obtain by exercising the invention itself, even while competing with others exercising it. The alleged benefit is, then, the increase, in how many inventions become known to the public, arising from the extra incentive.
Rewards should be proportionate to the value of what they reward – especially when the reward is provided at the expense of the common weal. A patent-holder's monopoly grants control over all exploitation of all inventions depending on any idea within the remit of their monopoly. Consequently, each useful invention is wont to be burdened with claims from many patent-holders. As described above, there is no guarantee that the tax each levies on deployers of the invention will be proportionate to the value of their contribution. An idea from which no-one could extract any value by its direct application may, none the less, bear upon aspects of more useful inventions. No matter that these last may have been arrived at independently of the useless idea: still the inventor whose contribution was worthless is able to control all exploitation of a valuable idea.
In contrast, the patent system's immediate cost, the price it avowedly obliges us all to pay for the given benefit, is that, for a moderate period, it deprives everyone but the patent holder of the liberty to exploit the invention, save with the leave of the patent holder. As the patent lasts only a while, this cost is limited in time: yet still the cost is there.
The justification for rewarding an invention is the benefit it yields to the common weal: yet the more it does so, the greater is the cost to the common weal of not being able to exercise it. There is nothing fundamentally wrong with this: the greater the value, the greater the price we are willing to pay. None the less, it is a cost.
Any patent system has a further cost: either unwarranted patents shall be granted, or the patent review system will be highly expensive – or, more likely, some combination of the two. The U.S.A.'s solution (in which patents are granted rather liberally, by a patent office always nervous of being sued for refusing a patent, but the courts are empowered to decide whether the patent was warranted) amounts to shifting the cost of review from the state (which grants the patent) to those on whom fall the primary cost – being deprived of the liberty to use the idea. However one may view the justice of this, the cost remains: the review system for patents is expensive (possibly more so, even to the state, via the cost of running the courts in which patents are tested; and the litigants' costs, in lawyers' fees alone, are wont to vastly exceed the patent office's saving).
Indeed, the benefit offered by the patent system is only available even to
the patent holder at the expense of litigation: while, at the same time, the
cost of the system includes the costs inventors must endure (even if not seeking
a patent) in determining whether their inventions infringe the patents of
others. Enough patents are granted that the time taken, and costs incurred, in
such a check can significantly detract from the time, and other resources,
available to inventors for inventing, which is what we were trying to
encourage them to do and reward them for doing. Even after making such a check,
some patent holder may disagree with the inventor's conclusion that their patent
does not apply – indeed, patent-holding businesses routinely claim that
their patents apply everywhere they can make a case for it – so that there
may be several patents (some of them quite possibly unwarranted) for which the
inventor must be prepared to endure the costs of proving to a court (as opposed
to merely checking in good faith) that they do not infringe, or else they must
endure whatever license
fee the patent holder chooses to charge. All this
as a precondition merely of reaping the natural rewards available by exercising
their own invention, even when invented entirely independently of any patent
holder.
This is not to say we should not reward inventors: however, these issues constrain how we should go about rewarding them. The state, which offers the rewards, could institute a system of gifts (or, which should be roughly equivalent to those whose inventions are truly valuable, loans without usury) by which to reward inventors. The considerations above demand that the agency by which such gifts are bestowed should:
inventorhas made the idea available to the public;
Any such system is naturally apt to depend somewhat on the discretion of the agency in charge of it (as, indeed, is true of patent offices): which in turn requires close scrutiny of its methods of reaching decisions.
At the same time, it may well be worth limiting the scope of contractual prior surrender of rights in such benefits, since it is the inventor we intend to benefit, not those who have bullied the inventor – though this may become less of an issue if the potential benefits to those presenting take-it-or-leave-it contracts are not sufficient to out-weigh the loss of good-will which results from playing such hard-ball.
While the state's rewards could be simple one-off payments (which would
depend on a level of guess-work as to future value), I would suggest an on-going
payment scheme. Let inventors submit plans and designs to the invention office
(replacing the patent office), which shall perform some assessment of novelty
and obviousness and advise the inventor of their findings; inventions lacking a
suitable mix of novel and non-obvious
will be quietly filed and
forgotten, unless the inventor submits further documentation expanding their
submission to something more worth-while.
Novelty need not be strict: though the invention office will need to establish some means of determining whether the submitter really discovered the invention independently, or is merely submitting a description of what they have learned someone else has invented; being first to file will merely be one indicator, and inventors will be encouraged to declare who they have told about their invention. A corporate submission of a claimed invention may well need to show evidence of their research, along with some indication of which of their staff contributed to it (at least partly so that, by interviewing them, the invention office can verify the claim that they discovered the invention) and how these are being rewarded by the corporation; if handsomely, the corporation will be getting more rewards in connection with the invention; if scarcely at all, the nominated researchers will be the invention office's beneficiaries.
Inventors also get to notify the invention office of any businesses they know of which are using their ideas: the invention office will need to verify such assertions. The invention office, collaborating with the tax office, gathers information on how much the invention is contributing to the earnings of businesses. Its assessment of this is then used as the basis on which to decide the value (ideally to the public in general, but at least to the exchequer, whose valuations are easier to describe) of the invention; each year, those who contributed to the invention receive a payment proportionate to their contribution to this assessed value.
Inventors who ask no recompense should be encouraged still to submit their inventions and reports of their use: in effect, the system would track their inventions' contributions to the common weal in the same terms as all others, but effectively credit these contribution to the exchequer (who would otherwise have been paying them) instead of the other inventors, thereby diminishing the nation's tax bill. The extent of such benefits should properly be reported by the inventions office, though it need not identify the inventors, along with its records of what it has paid to whom.
Note that:
By contrast, all the costs and benefits of the present monopolistic system are matters of speculation: none the less, it is to these that I must now turn, if only to offer the case that the costs are great and the benefits small, since powerful vested interests are wont to belittle the costs and exaggerate the benefits.
An alternative to internationalized patents would be for governments to deem
filing for a patent in some other jurisdiction as prior publication
and
hence grounds for refusing a patent: the inventor would then seek out the
jurisdiction in which the patent is most valuable, file there, and thereby allow
the rest of the world to benefit from the patent even during its life.
While my main concern is the essential defects of the patent system, it is
worth pausing to outline the defects of our modern patent system which are not
essential – if only to keep myself from being distracted by them during
the main discussion. [Aristotle, IIRC, separated characteristics of a thing
into essential and accidental
, the latter being what could be avoided by
a different expression of the same essence; English will also allow us to
describe these as incidental
defects.] Some of these accidental defects
could be removed by amending the system; though the great rate of innovation in
our modern world would make the removal of others impractical.
The United States of America has granted over six millions of patents: across the world, there are many millions of patents presently in force. The system of patent review could be strengthened to bring this number down: but, as things stand, it is utterly unreasonable to expect anyone to know that an invention they came up with independently is covered by someone else's patent. Lack of certainty of reward from one's labours is generally accepted as a disincentive to work: unless the sheer volume of patents being granted is reduced to a far more manageable level, patents contribute a definite disincentive to invention, along with their alleged incentives. Such a reduction can only be achieved by tightening the constraints on what inventions warrant the grant of a patent.
The U.S.A. grants patents rather liberally, empowering its courts to
over-turn them: this divides the cost of review into a relatively cheap first
pass in the patent office and a relatively dear subsequent process in the
courts. Those patents which are never contested are thus reviewed for less
cost: however, this may be more than made up for by the assorted costs of the
contested patents. The first of these is that a great many folk are paying
license fees to the holders of patents which should never have been granted: the
cost of litigating to over-turn the patent is so high, and the possibility of
losing unjustly so real, as to discourage those hindered by the patent from
taking on the challenge. Furthermore, the burden of proof falls on those who
are bearing the primary cost of the patent; and in a weak position when it comes
to presenting the case: they are exploiting the idea, which the patent holder
shall use as evidence that the idea is valuable – no matter how marginally
their infringement
involves the patent – and as grounds whereon the
court should doubt their claims (or those of their witnesses) that the idea was
obvious or insufficiently novel.
At the same time, this abdication of responsibility by the patent office makes it much harder for anyone to challenge the constitutional basis of patents in general, despite making it much easier for patent-holders to profit from patents which should be ruled unconstitutional (because the grant of them does not promote progress in science and the useful arts).
None the less, given that patents are effectively international, the patent
office which grants patents most liberally benefits those who file first at that
patent office – before filing in others – and reaps the greatest
revenue from filing fees. At the same time, review is expensive, so an
irresponsibly liberal patent office saves itself money. Thus the economic
pressures on patent offices favour those which are most liberal in granting
patents; and, in so far as inventors generally file for a patent in their home
jurisdiction, jurisdictions whose patent offices grant patents more liberally
profit at the expense of jurisdictions which exercise more restraint. Yet, as
argued above, what is needed is a shift to an international patent regime in
which the number of live
patents is reduced by several orders of
magnitude – not one in which this number grows as fast as possible.
None the less, the present monopolistic system manages to garner a great deal of support: the common arguments for it, thus, deserve my attention.
It will be argued that at least one inventor was rewarded and one has to
live with some minor imperfections
in any system. However, if you are
employed, I beg you to go and read your contract and relevant law. I am
depressingly familiar with finding that I cannot take up a job
without agreeing
to allow my employer all rights to all inventions I
might have while in their employ
. That doesn't just mean the ideas I
have, at work or relating to my work: it means my employer would own the patent
on a star-ship drive, if I invented one, even though I was only employed to
write programs and had the idea while taking a week's holiday at my own expense
to visit a conference of theoretical physicists. In such a case, patents do not
assure that even one inventor is rewarded: any reward my employer gives me at
this point would be entirely at their discretion (i.e. not assured by
the system). At the same time, there is no assurance that the beneficiary of
the patent has in any sense contributed to the invention (since your employer
will own your idea regardless of whether they did anything that contributed to
the idea or rewarded you for having it).
Indeed, the grant of a monopolistic privilege does not guarantee any inventor any reward for their invention, provided only that the privilege be transferable. Since the greater part of folk do not anticipate that we shall actually invent anything worthy of a patent, we can sign away our rights to gain any reward by our inventions: we may be uneasy about it, but a sufficient incentive may persuade us to do so. In a world where no employer will offer me a job without such an agreement, I am effectively coerced into entering into such an agreement in order to earn a living. This is, in fact, a common story: most folk who earn their livings by doing creative work, in any guise, are bound by contracts which lay claim to all creative work we do (not limited to the work we do on our employers' premises or at their bidding, nor to work pertaining to our employers' business).
The same may fairly be expected in the case of any reward for an invention:
the inventor may be subject to some prior agreement
, possibly entered
into under duress, by which someone else is the beneficiary. Consequently, not
only does the monopolistic patent system deprive all but one inventor of their
natural reward for the invention – their ability to deploy it – but
any system of rewards is liable to fail even to reward that one
inventor. Whoever is able to bully potential inventors into surrendering their
rights in the invention, before they have even a notion of what they might
invent, can arrange to be the sole beneficiary of a system designed to reward
inventors. In such a case, the actual inventors are all deprived of their
natural reward; and the possibility of such rewards has served as an incentive
persuading others to bully potential inventors.
So, if inventors deserve
to be rewarded
for their
inventions, it may fairly be said that: no monopolistic scheme can succeed; any
scheme which rewards only one apparent inventor will necessarily be unjust and;
any scheme must be designed with care if it is to actually deliver, to those who
deserve them, rewards proportionate to the value (to the public) of
inventions. A system justified by a moral argument must be dismissed with
contempt it if, in fact, encourages immoral behaviour or even fails to serve the
moral aims it claims as its justification.
Still, one may argue that the prospect of getting inventions out of their staff encourages businesses to hire potential inventors. Certainly, some businesses employ staff to hunt for inventions: in such cases, one cannot but accept that the employer has some right to at least a share in the spoils; and, indeed, such businesses are wont to reward their staff for inventions. Furthermore, many inventors would far sooner be playing with more ideas, in search of more inventions, than doing all the tedious business of exploiting their earlier inventions; such businesses can serve inventors well.
Indeed, one (mostly expeditious) form of the deserved reward
argument
is that businesses which engage in research need some assurance of future reward
to cover the cost of research. Again, with monopolistic rewards, this falls
foul of the fact that all but one inventor is not only not rewarded but deprived
of the right to exploit the invention to reap their own rewards – or,
indeed, to merely cover their costs in researching the idea – out of a
free market; but, at least, it does not fall foul of the coerced surrender of
rights to which so many potential inventors are subjected.
However, a system which rewards only the first inventor skews the economic
environment for research businesses: the incentive is to be the first to stake a
claim on the invention, not the first to actually put the idea into practical
use yielding economic benefits to the public. Thus any first to file
system rewards those who focus on staking a claim to the rewards at the expense
of those whose research actually generates the benefits which are supposed to be
rewarded. Furthermore, since the former will be doing all they can to spy on
the latter, who will anticipate this, the latter will be secretive about their
work, thereby slowing the dissemination of interesting and useful ideas. Thus
such a system actually hampers progress in science and the useful
arts
.
At the same time, under a monopolistic system: those who build on ideas to which others have laid claim become beholden to these claimants, even when what they build on top is of far greater value than what they built it on; indeed, the value of the reward is greatest for those who, having ample wealth with which to fund lawyers, least need it – while an idea's value, to the general public, has scarcely any effect on the scale of the reward, if the patent holder can only find a way to argue that the patent applies to some aspect of some more valuable invention. When it does arise that several patent holders can lay claim on any useful invention, the system creates cartels rather than – as intended – monopolies; and the balance of the rewards within a cartel need not reflect the balance of value among the various parties' contributions to the whole.
In summary: no matter how compelling the case, whether moral or otherwise, for rewarding those who create value in the noösphere, using a monopoly as the reward has the opposite of the effects desired: it discourages the sharing of ideas, encourages the powerful to bully those who might create ideas, favours the selfish over those who focus on generating the greatest benefit to the common weal, provides an unreliable reward preferentially to the least needy of those with a claim to it – rather than proportionately to the value, to the common weal, of their contribution – and, in the process, deprives all who make closely related inventions (even if independently) of even the reward they might fairly have obtained for themselves, had we not attempted to reward anyone. Some other reward might fairly be justified, but not a monopolistic one.
natural rightargument
The argument for a natural right
in ideas is nonsense: such
a right
cannot stand up to scrutiny; indeed, it could not even have been
countenanced had we not spent several centuries living under a system of
government-granted monopolies, to inure us to the folly. Rights to life,
liberty, property, freedom of assembly and the like all:
So consider a right
to control ideas; if two folk come up with
the same idea independently, either you must allow each equal control over the
idea (which will lead to an unenforceable mess, since it is singularly hard to
determine whether someone who claims to have had the idea independently was, in
fact, lying about independence), or you have to grant control to only one of
them, at which point (when the other did arrive there independently)
this right
deprives them of exactly what it promises them – and, as
a bonus, deprives them of the more basic right (which could indeed sit alongside
the ones characterized above) to exercise the idea.
Now, whether someone else already owns the rights
in some idea is not
something one can determine locally – to know whether the right to
ideas
has any validity, you have to know about the activities of folk
arbitrarily far away, with whom you have no connection. For your rights
over the idea to be honoured, you need to ensure that everyone on the planet
knows your idea. Thus this right
fails the two locality properties
above; and had no place in the world a priori to the invention of laws
granting monopoly privileges that have since been deceptively re-branded as
a property right
.
Written by Eddy.