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Why do I study patent law?
The Foundations of the Patent Regime | |
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< | During the course of my study of patent law in the last semester, I began to question my reasons for studying patent law. At one level, it appeared to me to be nothing more than a system which attributed arbitrary values to human innovation and created a bureaucracy to enforce that system through the mechanism of the state. Though I have always been fascinated with patent law, on reflection this appears to stem from a fascination with the idea of human creativity in the origination of useful technical information. I was fascinated with patents because it seemed to me that the patent system was the accepted legal and economic standard for the encouragement of such creativity, and that an analysis of this system would lead me to an understanding of the way in which this creativity could be nurtured and encouraged. On further analysis, it would appear that this is considered to be the foundation upon which the patent system, (and for that matter, the intellectual property system itself) claims its right to existence today. (For further information on the subject, see page 10 of the linked .pdf). When broken down, the arguments for the existence of the patent system seem classifiable into these points: | >
> | During the course of my study of patent law in the last semester, I began to question my reasons for studying patent law. I was fascinated with patent law because it seemed to me that the patent system was the accepted legal and economic standard for the encouragement of technical creativity, and that an analysis of this system would lead me to an understanding of the way in which suchcreativity could be nurtured and encouraged. On further analysis, it would appear that this is considered to be the foundation upon which the patent system, claims its right to existence today. When broken down, the arguments for the existence of the patent system seem classifiable into these points: | | | 1. Human innovation is part of an
a. individual-centric process of creation | | | 2. This process of creation would not occur spontaneously, or at least, would not occur at an accelerated rate, if economic incentives were not provided to the individuals who so create
3. The incentive required to be provided should be in the form of a monopoly granted by the state to the individuals over such creation (the underlying assumption being that such a monopoly would allow the inventor to do with the invention as he saw fit) | |
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< | In the course of my study of patent law, I came to realise that these assumptions are flawed. Whether they are only flawed today, as a result of the directions US and international patent law has taken, or whether they were flawed at the outset is a question that will be answered in the course of this paper. | >
> | In the course of my study of patent law, I came to believe that these assumptions are flawed. Whether they are only flawed today, as a result of the directions US and international patent law has taken, or whether they were flawed at the outset is a question that will be answered in the course of this paper. | | |
The Mythical Inventor and the Magic Flame | |
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< | The primary assumption that innovation is a process of creation undertaken by an individual inventor would be the first to go. It is clear from USPTO statistics that 87% of all patents granted in the recorded history of the USPTO, are granted to collectives, whether government undertakings or corporations, as opposed to 13% secured by individual inventors. Though these numbers reflect the USPTO's experience in patenting, they are also fairly reflective of worldwide practice in patent applications. The assumption, reflected in most patent statutes, that innovation is the result of an individual inventor is inherently flawed. It would be an unfair generalisation to say that human innovation has always occured through collectives, but that is the overarching reality, irrespective of how this reality is represented statistically. Innovation is an inherently collaborative process. At one point, the collective of choice was the State. With the birth and evolution of the corporation, the locus of collective power has changed. | >
> | It is clear from USPTO statistics that 87% of all patents granted in the recorded history of the USPTO, are granted to collectives, whether government undertakings or corporations, as opposed to 13% secured by individual inventors. Though these numbers reflect the USPTO's specific experience, they are also fairly reflective of worldwide practice in patent applications. The assumption, reflected in most patent statutes, that innovation is the result of an individual inventor is inherently flawed. It would be more accurate to say that innovation is largely a collaborative process, carried out by collectives, whether the State, or the corporation. | | | | |
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< | However, this shouldn't make a difference if this innovation results in the creation of discrete, novel and useful inventions, right? Unfortunately, any critical analysis of a sufficient sample of patent applications will demonstrate that this assumption is also ungrounded. The vast majority of patents granted consist of minor improvements in existing patented devices(for more information on this, see Chapter 13 of the linked Googlebook). A further analysis of these existing patented devices themselves yields a similar conclusion. This is not to say that some of these incremental additions do not advance the field of innovation to a great degree. The assumption made by patent law, that innovation exists like a magic flame created out of the ether of individual brilliance is flawed. Sparks of genius may exist in the form of individuals, but the innovative blaze that results rests on the kindling of centuries of effort of thousands of people. | >
> | However, this shouldn't make a difference if this innovation results in the creation of discrete, novel and useful inventions, right? Unfortunately, any critical analysis of a sufficient sample of patent applications will demonstrate that this assumption is also ungrounded. The vast majority of patents granted consist of minor improvements in existing patented devices. A further analysis of these existing patented devices themselves yields a similar conclusion. This is not to say that some of these incremental additions do not advance the field of innovation to a great degree. The assumption made by patent law, that innovation exists like a magic flame created out of the ether of individual brilliance is flawed. Sparks of genius may exist in the form of individuals, but the innovative blaze that results rests on the kindling of centuries of effort of thousands of people. | | | | | | So why do I study patent law? | |
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< | Once the foundation for the patent system loses plausibility, the remainder begins to look extremely wobbly. What is the point of a system of novelty, utility and nonobviousness but to create arbitrary rulesets determining potential excludability of other creations? Why understand reexamination or infringement procedure when you are aware that it serves as nothing more than a mechanism to service an already arbitrary ruleset? The answer lies in the inherency of the patent system in almost all forms of technological development today. Irrespective of the scope for the growth of networked innovation, the actual spread of this innovation system is dependent on material to innovate from. Most of this material is tied into the patent system and owned by organisations who would seek to extend their ownership (and resulting profit) over it for as long as possible. Even now, new material is automatically deposited within this system and tied up within its complex rules and procedures. The only way in which such material can be freed is through an understanding of these rules and procedures, resulting in a knowledge of the means of their circumvention. The GPL exists as a result of the knowledge of copyright law and patent law and the ways in which it can be circumvented. Absent that knowledge, there would be no GPL. It is for this reason that I still feel that the study of patent law is relevant. | >
> | Once the foundations for the patent system loses plausibility, one begins to question the purpose of a system of novelty, utility and nonobviousness beyond creaing arbitrary rulesets. Similarly, reexamination or infringement procedure may be seen as a mere bureaucratic mechanism to service this ruleset. The question remains, then. Why bother with patent law at all? The answer lies in the ubiquity of the patent system in technical development today. The actual scope for the spread of networked innovation system is dependent on material to innovate from, most of which is tied into the patent system and its complex of rules and procedures. The only way in which such material can be freed is through an understanding of this system, and the means for their circumvention. The GPL exists as a result of the knowledge of copyright law and patent law and the ways in which it can be circumvented. It is for this reason that I still feel that the study of patent law is relevant. | | | -- RohanGeorge - 28 Jan 2009 |
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