08 August 2006

Patent combatant

I'm a member of a book club organized by the Show-Me Institute.  Since I joined, we've read Parliament of Whores by P. J. O'Rourke and The Death and Life of Great American Cities by Jane Jacobs, and right now we're in the middle of The Mystery of Capital by Hernando de Soto.  Each questions on some level the desirability of government action.  During the discussion of the first half of de Soto's book, we somehow got onto the topic of patents, specifically software patents.  I mentioned that I and two other guys filed for four software patents while working for IBM in Austin about five years ago but I never got around to checking whether any of them had made it all the way through the process.  Well, we checked, and two of the four are now patents!  You can find them at the Patent and Trademark Office's database; the patent numbers are 6,778,837 and 6,898,628.  (Checking the patent application database shows that the other two filings never made it even that far; presumably, IBM's lawyers didn't think they were worth the expense.  Anyway, IBM gave us inventors little bonuses for all four filings.)

I suppose they'll look good on my résumé, and I guess I'm proud to have my name on something that was deemed important and original enough to be patented, but I'm also a little ashamed.  I mean, what is a patent, really?  It's an artificial restriction on the commercial use of an idea.  Not an actual piece of property, but an idea.  I have no desire to restrict anyone from implementing our ideas.  And while most patents cover a specific implementation of a new idea, complete with detailed diagrams of its inner workings, software patents usually just describe what the invention does, not how it does it.  Read about our patents and you'll find prose more conceptual than concrete, written in dense lawyer-speak designed to cover as many potential products as possible.

I know the Constitution gives Congress the power "[t]o 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", but that doesn't mean Congress should, and it doesn't even mean Congress should be able to.  The Constitution has been for the most part a force of good, and most instances of government evil have been unconstitutional, but it's not infallible.  And it's simply assumed that a patent system will encourage innovation, but I don't see that that's necessarily true.  Decisions regarding which inventions are patent-worthy and whether a patent has been violated are often more than a little arbitrary, but even given perfect administration and judgement, which are impossible, I'm not convinced that innovation would suffer in the absence of a patent system.  In fact, I think compelling arguments can be made that patents, if anything, tend to quash innovation.  Certainly there's no end to the list of ridiculous software patents that really shouldn't be enforced.

Oh well.  At least our patents will expire.


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