A friend asked for my thoughts on NPR’s piece from a few weeks back on “patent trolls.” Whereas, I am fairly confident about my views on copyright, I’m much less so with respect to patents. But hopefully my response below represents at least a decent starting point for thinking about their efficacy. What follows is my email response to my friend, lightly edited, mostly to add capital letters….
The piece fit pretty well w/ what i’ve seen elsewhere and it’s specifically about software patents. a couple quick things:
1) The point of patents are to incentivize innovation. That’s it. Not to grant people rights to their god given property or whatever. It’s a consequentialist framework.
2) Best I can tell there is near consensus in the software and computer science worlds that software patents are a bad idea. I base that on references I’ve read elsewhere, what’s said in the piece itself, conversations I’ve had with programmers and a talk I went to earlier in the year by a notable comp scientist.
3) It’s completely possible that software patents make no sense but that other areas of patent law are either working well or even are not strong enough. While I think the case for shortening copyright terms is 100% airtight, I don’t pretend to have a view about, say, pharmaceutical patents. Software, though, seems much clearer.
Now to look at the best argument presented in favor of today’s crazy software patent setup, from the NPR piece:
IV, for its part, says its job is to encourage invention, not to bring products to market.
Imagine an inventor out there — someone with a brilliant idea, a breakthrough. This inventor has a patent, but companies are stealing his idea. And this inventor doesn’t have the money or legal savvy to stop them. That’s where IV comes in. It buys this inventor’s patent, and it makes sure that companies who are using the idea pay for it.
(IV = intellectual ventures, a “patent troll”)
So this seems pretty sympathetic right? If not for this, lone inventors couldn’t reap the rewards of their creations. They’d be stolen by big companies. So there are 2 lines of attack against this i think.
a) The piece points out this isn’t realy how it works. This is a shady business for big money based a lot around big companies vying against each other, not about protecting small guys
b) Even if it were like that, we have to go back to the purpose of patents. The purpose of patents is to get innovation. So if a guy invents something and a company steals it, is that bad? Only if no one was going to invent it otherwise. if, absent the incentive, that innovation is never brought into the world.
That sounds harsh, and even i dislike he idea of someone else making money off another person’s idea. But we have to respect the point of intellectual property, which is incentives.
And just as importantly, the above fake scenario preys on our leaning to prize “invention” and “ideas” and undervalue execution. Talk to any investor or entrepreneur and they will tell you that it’s execution that makes a successful product. So when we bemoan the guy who didn’t get paid for an “invention” we miss a lot of the value add. To create a new thing takes more than an idea. Whether the idea itself should be given protection under IP needs to be based on the consequentialist view described above.
I have a whole other set of thoughts on the idea vs. execution thing, and what i described to you is the mainstream entrepreneurial view, NOT my own view (though my own view also places relatively less value on initial ideas or “inventions”) but that’s a separate topic.
