turpin@cs.utexas.edu (Russell Turpin) (04/13/90)
----- Follow-ups directed to misc.legal only. ----- brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes: > For thousands of years ideas have been free. In article <2148@mit-amt.MEDIA.MIT.EDU>, edit@mit-amt.MEDIA.MIT.EDU (Film/Video) writes: > That may be so, but for hundreds of years inventions have been > patentable. Which ducks the question of whether patents are a good or bad idea. Obviously, to those individuals who are enriched by patents, they seem a good idea indeed. But are they good for the industry concerned or the economy as a whole? The theory behind patents is that without them, people would be less driven to create new things and processes, and companies would be less willing to fund the research behind this. The cost to the economy of having patents is two-fold: (1) the inventions and processes that are patented are less well utilized, and (2) there is less incentive to produce improvements on things and processes that are already patented. It is important to note that there remains great incentive to creation even without patents. There is considerable time between coming up with an idea and bringing the results to market, and this lead time plus the marketing advantage of being there first provides a considerable edge to companies who successfully do it. The software industry of the last three decades is an example of a field without patents or their equivalent, since the "processes" and "things" which drive it are ideas (algorithms, interfaces, techniques, etc), which until recently were not protected. As Mr Bernstein writes, ideas were free. But the software industry can hardly be characterized as one that lay fallow for want of sufficient legal protection of invention. Despite the fact that Lotus had no protection from other companies producing spreadsheets, IBM from other companies producing relational databases, Hoare from people using Quicksort without permission, etc, the software industry is as full of people trying to do something new, different, and better as any industry has ever been. I have read of a few economic studies that attempt to illuminate the question of whether patents help or hurt the economy. It is a thorny problem, because it involves the counterfactual. We cannot directly compare two industries that are identical except that one developed with patents and the other without; but instead are limited to asking "what might have been?" The studies I have read about all put a dim light on patents, suggesting that in almost all cases, the industry and economy as a whole was hurt by them rather than helped. (Does anyone know of countervailing studies?) Large and established companies like the idea of patents. They can more easily afford the research required to create them, are in a better position to make use of an exclusive right, and have legal staff to bend the patent laws to their best interests. In many cases, it does not matter to the large company whether their own researches developed the work, or that they license it from someone else. For small companies, the addictional cost of licensing patents, and even determining what patents need to be licensed can be significant. An inventor can create something new, only to be prohibited from any application because the components or some part of the process is already patented. (The individual who starts a new industry relying on a patented device is more frequent in fiction than real life. Most often, individuals with a good idea must license their patent to existing companies in order to see any profit from their endeavors, and quite frequently, there is only one buyer with the other patents required to make use of the inventor's improvement.) It may be time to shift the focus of the debate. Instead of arguing whether or not patents are needed for algorithms and interfaces in the software industry, we might do better to ask whether or not patents should be eliminated in other fields. Russell