Saturday, December 31, 2011

The Failed Promise of Patents

Some say that patents are a prohibition on competition against an inventor, but I believe that patents very much prohibit cooperation among innovators. With regard to disclosure of the invention, the general consensus among many who do read patents is that they incorporate language that is so broad and vague, it is often hard to determine just what invention is actually disclosed. That vague language prevents cooperation among innovators with fear, uncertainty and doubt.

To put it differently, a person practiced in the arts described by a patent would be hard pressed to recreate the invention disclosed by a patent. This is particularly true of software patents which are so general as to be a patent on an idea rather than a specific invention. The goal in writing patents, it seems, is not to disclose the design of an invention, but to get a private monopoly on an idea.

Patent apologists implore us with the notion that without patents, inventions would not be disclosed, keeping inventions secret. The technology available today allows for reverse engineering down to a very minute scale. Given enough incentive and eyeballs, an invention will eventually be reverse engineered, and 99% of the time, we have the resources now to do it. Note how every DRM system ever released has been broken. There is even recent news of a workaround for HDMI encryption.

Besides, an invention with a design that is unavoidably disclosed is ripe for sharing anyway. The best that any inventor can hope for is good execution for the first mover advantage, even with a patent. The first few years of sales with very good execution and manufacturing will provide plenty of revenue to cover the costs of development.

Until I see conclusive evidence that patents have been a net positive for society, I remain unconvinced. Patent defenders will often point to the innovation we have seen so far, but that is innovation in *spite* of the patent system. I think they would find it difficult to show even one patent that has not hindered follow-on innovation or one that provided society with more wealth than the patent owner has gained. In sum, patents are great for litigation, not so great for innovation.