Patents have become a hot-button issue in recent years (since the 1990’s, really), particularly software patents. Essentially, the software patent system is presently too permissive, granting patents on many basic ideas that should not receive patents in the first place. Episode 67 of the Hypercritical podcast, “A Pill That Helps with Whatever”,1 John Siracusa, who I greatly admire and respect2, advocated a position I hadn’t even heard proposed elsewhere: abolish all patents. Not just software patents (and not copyrights, at all), but a patent on anything.
To put it mildly, I took issue with this stance. I listened through his entire discussion on the topic, waiting to be persuaded, but I never got there. To boil down his reasoning, and highlight where we disagree, he believes that an inventor has no entitlement to the exclusive use of his idea. Once invented, the implementation can be freely duplicated by the whole world. I believe, on the other hand, that if you invent something, it’s yours.
The appeal to authority
Siracusa delved down to the U.S. Constitution, which happens to be a renewed interest of mine at present. Basically, I’ve been reading through an annotated copy of the Constitution. It presents a scholarly essay on each clause of the Constitution, and it so happens I was in the middle of Article I, Section 8 when I listened to the podcast episode.
When discussing the clause about intellectual property, John Siracusa suggested that people refer to “The Founders” to support their views as merely an appeal to authority. I disagree with this view. Having read about the framing of the constitution, I feel a sense of awe at how lucky we were to have so many brilliant and well-read thinkers living here at one time, all working together to craft an enduring free system of government. When I personally refer to the framers’ intent, I am thinking of the months and years of debate that produced our founding document; a document which has led to the most free and prosperous nation in the history of the world.
And that’s not even the most important point. I don’t usually appeal to the authority of “The Framers” as individuals, because there are two other more important reasons to invoke the Constitution. First, that’s how you answer the question of whether Congress has the power to address a particular problem. In the case of patent law, the Constitution clearly grants this authority (as discussed below), end of story. Second, when it comes to defending an idea based on its presence in the Constitution, it’s not about deifying James Madison or Thomas Jefferson. It’s about our country’s (and therefore the Constitution’s) track record.
It’s easy to lose sight, having been born and raised here, of the exceptional nature of our country as founded. As Siracusa mentioned, we are relatively unique, in that we were founded on ideas, not the coincidence of having been born in a particular geographic area. Our democratic republic has remained free and flourished for a long time, counter to the examples of most other nations throughout history, whose governments ultimately end up oppressing their inhabitants until they’re forced to rise up and overthrow their leadership.
Alteration of the Constitution, which as pointed out below would not even be necessary to abolish patent law, should be considered with great trepidation. Our country didn’t rise to its present position by accident, and there’s a reason the amendment process requires such a high burden.
The Constitution of the United States, as it pertains to patents
For those not familiar with the Constitution’s structure, it set up a limited system of government. It specifically limits Congress to passing laws within specific roles, enumerated in Section 8. As Siracusa pointed out, Section 8, Clause 8 grants Congress the authority to legislate intellectual property:
The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….
Significantly, though, the Constitution does not specify the manner in which intellectual property is to be protected, nor does it even mandate that such protection be implemented. As with the other powers enumerated in Article I, Section 8, if Congress wrote no patent law, or struck all existing patent law (as Siracusa suggests), the Constitution would not have been violated.
The Framers wrote the Constitution from the perspective of attempting to fix the problems of all other forms of government, including the recently failed Articles of Confederation. They debated every clause, every sentence, at great length, and recorded majority and dissenting opinions in The Federalist Papers and The Anti-Federalist Papers. The essay by Thomas B. Nachbar of the University of Virginia School of Law about Clause 8 explains that there was not much disagreement or debate, however, about Clause 8. In fact, as Nachbar explains, The Federalist Papers contain only one paragraph on the subjecct:
“The copy right of authors,” Madison wrote, “has been solemnly adjudged in Great Britain to be a right at Common Law. The right to useful inventions seems with equal reason to belong to the inventors.” On this point Madison was mistaken; the House of Lords had decided in 1774 that copyright was not a common-law right, and invention patents had always been granted as a matter of crown or parliamentary discretion. In the very same breath as he extolled a natural-rights view of intellectual property, however, Madison also struck upon an incentives-based approach, justifying intellectual property regulation by its contribution to the public, as well as private, benefit. Madison concluded, “The public good coincides in both cases with the claims of individuals.” He did not address the question of what to do in cases in which the public’s good is not served by extending intellectual property rights.
As mentioned, though, the issues today involve laws enacted by past Congresses, not the Constitution itself. I think it’s important to note, though, that (a) the idea of an inventor or author owning his work seemed like an obvious idea in the 18th century (so much so that Madison made incorrect assertions about practices in Britain), and (b) everyone will be better off if individuals can profit from their creative works. The Lockean concept of “Life, Liberty, and Property” thoroughly underpins our entire society, and intellectual property is, indeed, a form of property.
Your inventions are my inventions, Comrade
I realize this approaches Godwin’s law, but abolishing patents seems ideologically aligned with communism. I mean it literally, though, not as a pejorative means to end discussion. Communism relies on material property belonging to society, and not to an individual. If an invention doesn’t belong to its inventor, it must then belong to society. History has shown the end effects of removing the profit incentive, and they’re not pretty. When people have no incentive to work, they do not work. If you can’t profit from others’ use of your invention, why should anyone invent anything? Siracusa attempts to answer this with some (self-admittedly) hand-wavey notion of it all working itself out, but I wouldn’t be so sure.
I can wave my hands too, and assert that inspiration will still strike people as often, but they will not share their ideas with the public, or possibly even act on them at all.
Ultimately, I would like to ask John Siracusa how he can support copyright (stated in the Hypercritical episode), and not patents. I don’t see a difference. If you write a story, you have the right to sell it and to take action against those who copy it and claim it as their own. If you invent a widget of some sort, why should you have any fewer rights to profit from its creation?
Software patents, in particular
Whereas John Siracusa places himself squarely on the fringe by calling for all patents to be stricken, many more people do agree with getting rid of software patents. Even there, I disagree. At their best, software patents do protect novel ideas from being freely copied. For recent examples, look at Apple and Samsung. It’s very clear Samsung copied Apple in every way they could possibly manage, and they have to date been Apple’s strongest competitor. I do believe Apple should have legal recourse against them.
As has been pointed out with the iPhone and iPad, Apple did truly innovate. Phone and tablet hardware and software looked radically different before and after each of their respective introductions. I like using Apple as an example both because I know a lot about them from following them for many years, and because they are unique among innovators for having pushed the boundaries of software forward while simultaneously doing the same for hardware.
I have some ideas about what could be done to improve the state of software patents, but nothing very solid. But to solve a problem you need to define it. What are the specific problems with the current software patent system? As I see it, there is one main issue, and then two more to exacerbate it.
A small party (an individual or small/medium business) can be bullied by the larger fish in the pond. Someone like Lodsys can claim infringement and extort money out of them, and they have nearly no recourse. They can pay the license fee the company asks for, or be taken to court. Whether they are infringing or not, they can most likely not afford a legal defense (and almost certainly not one to stand up against larger companies which might sue).
You can patent common-sense or vague ideas that (a) apply to most software and/or (b) can be arrived at independently by numerous software developers who have never heard of the patent or its author.
You can patent concepts that have never been used in a commercially shipping product.
#3 has the easiest solution. If you require that software patents be used in a shipping product, that would cut down on a great deal of the “dumb” patents Siracusa refers to. You could even allow the patents to be filed before a product ships, but they would remain invalid until it did.
The first couple problems will require more difficult solutions. In solving them, you can’t raise patent fees or limit the amount of litigation, because those would have the opposite effect of the intended one. Smaller operations would suffer. What else might work?
My first instinct when it comes to problems of government is to find ways to remove government from the situation. This problem does not appear to be caused by overbearing laws or regulations. Next, I look for a possible private sector solution.
What might that look like? You could require that patent lawsuits first go through a vetting process of some sort by people knowledgeable about software, who could make a well-reasoned decision. I could easily see the selection of delegates to such a hearing becoming contentious and leading to new problems.
What if there were a technological solution? This would make sense for such a technocentric problem. As one idea, software patent applications could be posted online for an open community to debate and vote on. If a majority of participants deem the software patent to be sufficiently novel, it would pass. You could have something similar for vetting patent violations, where evidence is given of infringement and a community decides the merits of the claim. Imagine a community like Stack Overflow for these types of cases. A sufficiently sophisticated, self-policing community might be a good solution.
I’m no expert
John Siracusa openly admitted he’s no expert on patents, and I admit the same. I do fundamentally believe in protecting the intellectual property of inventors, though. My solutions described above may not work at all, and might introduce problems of their own. I don’t claim they are definitive, but I do want to try to arrive at a solution that doesn’t throw out the baby with the bath water.
Wow, you read this far? I’m impressed. Thanks for indulging me. What ideas do you have? I love feedback, so please use my question page or mention me on Twitter (@MrDov) and we can start an earnest discussion on software patents.
I believe this is the first time I’ve had cause to place a comma in proximity to a closing quotation mark on this blog. I’m in the Gruber camp here