(I wrote this 4 years ago, while I was planning to innovate a lot in the field of electric motor engineering. The innovations aren’t here yet, but otherwise everything is still absolutely true and the issue merits discussion.)
Patents give you the right to stop everybody else from making, selling, or using something you created (unless you expressly let them). They are a blunt and massive weapon of monopoly, granted for 20 years and even extensible beyond that (as long as you pay for it). They are relatively cheap to register with the State; but if you really want to make sure the patent will hold robustly in almost every situation, you will require the expensive help of specialized lawyers. The same ones you will need again to effectively uphold that same patent if it is legally challenged or infringed upon.
I don’t like monopolies, especially those that last more than a year. In the present day of fast-changing world and needs, it makes no sense to me to stop people from making and trading whatever they want, especially for long periods of time – I actually consider this a crime against mankind. The law of evolution should be “survival of the fittest”, not “survival of the richest”… You can argue that the richest are the fittest, but to me that isn’t true; there are way too many schemes and ways to “navigate” the system and get rich without ever producing a single milligram of value – take for instance the financial “sub-prime crisis” as a glowing example of a large “industry” that produces nothing but debt.
In the end, it’s the people with deeper pockets, larger “portfolios”, and larger alliance networks that win in the patent war: the “incumbents”. Unfortunately, they are also the people who have less to gain from innovation: they invest astronomical amounts into R&D and mass-production capacity, and they expect to see the returns from this investment. And since this is a slow process, it is natural that disruptive innovations spring up in the meantime, threatening their market. That’s what disruptive means: something new that is so good, that everybody drops the “same old thing” and rushes to buy the “shiny new thing” – leaving the established players sleepless over their lost investments. Fortunately for them, it doesn’t happen that often.
But curiously, that’s another reason why they don’t like true innovation: because it is really hard to do. Because you need to think “out of the box”, free from the burden of decades of industrial compliance. To innovate, you need to be different, to think different, to go for the impossible, to truly believe you can make a difference in the world. If you’re just going after your everyday meal, if your target is to “grow the market share”, then you’re not innovating, you’re merely producing. Innovation is intrinsically tied into change, and change is still something dangerous, uncontrollable, and downright uncomfortable for large companies.
Innovation is certainly not the mindset of large rich companies. It is the mindset of start-ups and individual inventors – the very people patents were created to defend. Unfortunately, you cannot usually uphold a patent against a large company: they bury you into the ground in legal technicalities until you give up or sell out. And let’s face it: the patent system doesn’t work any more! The USPTO, for example, has repeatedly granted patents over things that are not patentable in the first place: either because they were already patented (!), or because prior art was already established. The fact is, the patent offices are so jam packed with idiotic and broad-ranging filings, they are no longer capable to do proper due diligence to find out if a new filing is worthy or not – especially with several multi-billion corporations breathing down their necks…
To those that argue that patents are necessary to defend innovation, because otherwise innovators would not have enough exclusivity (time and money) to develop their inventions, or because all innovations would be kept as trade secrets and progress would decelerate abruptly, I answer this: look at the open source software (and hardware) businesses. Look at Science itself. Heck, you don’t even have to look that far; the example of the Japanese piezoceramic materials development after the war is a glaring statement in defence of open cooperation.They monopolized the market by being better at making a product, not by legal enforcement.
Sharing openly is what makes progress happen. And you can’t have a healthy economy without technical progress. This is a classical application of game theory: we could have a win-win situation with exponential gains, but instead we have an infinity of win-lose situations (and many lose-lose ones) because everybody is after a fast “meal ticket”. Pitiful.
Besides, if there ever was a time that fast progress was necessary, this is it: if we keep doing the things we do every day, the environmental changes will kill not only our snow and beach holidays, but also our agriculture and industries. Catastrophe, poverty and famine will visit today’s rich countries. And then, all that accumulated money will be worthless.
Ok, so patents are not really the way to go. The difficulty is: how do you make money from something everybody knows about? My answer: it’s not as easy as having a monopoly, but it is perfectly possible.
The problem is that people don’t know their “scarcities” from their “infinities”. Information is inherently an infinite good: it does not get spent when it is used. It can be infinitely copied without degradation or cost if we want to (and I’m not just talking about digital info; stone-age people taught their young about hunting and collecting well enough to develop effective optimized strategies – and always improve upon them, leading to today’s civilization). So, information can only be made “scarce” by means of artificial restriction: “I won’t tell you unless you pay me. And if you find out for yourself, I will make you pay!”
The alternative is to tell everyone everything. Why not?… if you take a really good look at reality, there are only two kinds of winners: those that bend the market to their own will (by ways of monopoly, consistently pushing the same old “one-size-fits-all” BS in everybody’s face until people give up the hope of having choice), and the truly fit (the ones that make the things that people actually need). And in the middle of these, there are millions of others that go nowhere: those that, even though they have a good idea, don’t know how to or just lack the strength to implement it.
And this is the crucial point: implementation is where the real value is. It’s not in the ideas. If you ever try to raise VC funds, you come fast to this conclusion; no respectable investor will give you money unless they have a “sure bet”, which in investor vocabulary means “a team capable of implementing it” – whatever the “it” is. Most investors don’t even pay much attention to the technical idea itself, they just want to know if you’re capable of pushing hard enough and long enough to see the benefits at the other end of the development and deployment tunnel.
And this is why I think patents don’t even make sense – in a world of healthy competition, they are not necessary. He who builds the best product, distributes it the best, and supports it the best, should get the most money (this is the business model of open-source companies). He who has a potentially good idea and does nothing (or very little) with it, should get nothing (or very little) for it. This is my concept of fairness: money for actual work and scarce goods. I despise the “make-once-sell-many” philosophy of the software industry: it rewards those who made something some time ago, and are able to reproduce it infinitely and virtually without cost. The cost they have is in “market maintenance” and comes almost completely from advertising and CRM: the “formatting” of the client’s mind. The same philosophy is present in the houses of “patent trolls”: people who patent something just to “ambush” anyone who is actually trying to change the market with an actual product, produced with real effort and painful investment.
So where does this leave me? I understand the intention of the patent system (and basically agree with it), but I don’t see it actually working in the market. It has reached a critical mass where it is doing more harm than good. And I see no way of correcting the system (other than the efforts of great institutions like the IIF and the US Supreme Court, and a few European initiatives against Software Patents).
I am, however, able to preempt the bad effects of this sick system upon me – by using it’s own rule book. Instead of biting the decoy and go filing patents left and right at great expense, I choose to publish my innovations (whenever I ever have any) as prior art. By doing so, I guarantee that they are not patentable by anyone, and that everyone is capable of implementing them as they wish. What am I giving up? just the monopoly, not the entire income source. If some big company with deep pockets and rapid deployment capacity starts producing “my” stuff before I can, that’s ok, because there is always room for one more – the secret is differentiation. Besides, if you’re capable of innovating once, you’re capable of doing it again (even if at incremental levels) and better than the copycats – therefore sustaining your advantage over the slower bigger companies.
So I’m starting a new kind of document: an Antipatent.
The purpose of this document is to publish the description of an innovation (just like a patent would), but in total public disclosure. By doing this, I make “prior art” publicly available and legaly prevent patentability of the disclosed innovation by anyone at all (including myself). No more exclusiveness. I gain in several fronts: I cannot be prosecuted by future patent holders which may cover the same innovations, I publish the technology for anyone to exploit and therefore accelerate progress via those who are most capable of delivering (implementing) it, and I support innovative dialog with anyone out there who may want to contribute in the same form. All this without losing the right to build it myself and sell it if I want to. A true win-win situation in my view.
Monopolies are overrated.
This just leaves one practical issue though: where should these Antipatents be hosted? Obviously, they will only have their intended effect if they show up in Patent Offices’ initial search for prior art, otherwise the whole preemption value is lost; it is a lot more difficult and costly to challenge a granted patent than to prevent it from becoming in the first place.
Do you know of any web sites that are dedicated to this cause of holding technological inventions in the public domain in a way that is quite obvious for the Patent Offices? If you do, let me know in the comments. Thank you.