Patent law reconciled with economic arguments?
John Duffy argues that recent trends in patent law - which may invalidate many software patents including Google’s PageRank - are totally wonky.
I agree, but I would say that patent law may be going in the right direction for the wrong reasons. In particular, when
- an innovation is one step in a rapidly progressing series of innovations or lays the foundation for significant future innovation, and
- the innovator’s costs can be recovered without being granted monopoly power,
then a patent is not worth giving.
Widely used-software seldom (never?) lasts more than a couple years without significant changes - just think of how much operating systems or web browsers have changed in the last 15 years (remember Windows 3.1? I don’t, either). Furthermore, by gaining an early market share, companies can often ensure success (MySpace and Facebook had many followers, but the head start could not be overcome).
Thus, both conditions probably hold for most software (and certainly for PageRank - Google’s revenues don’t hinge on IP protection), so I think there is good reason to be stingy about granting monopolies on software.
However, this is a long shot from the legal reasoning that currently threatens software patents. Apparently, the threat comes from the requirement that a patentable process must be “tied to a particular machine,” and apparently being tied to computers in general is not particular enough. BUT, the court has rules that processes implementable on two computers are particular enough. Consequently,
All these and many more fascinating questions will provide ample billable hours for patent attorneys even as inventors look on with utter horror and disbelief at the crucial importance the legal system is placing on distinctions that are technologically meaningless to the innovations sought to be patented.
I hear ya, Duffy
The apparent death of Google’s pioneering PageRank patent under the PTO’s new rule for patentable subject matter may be a cause for celebration among those who are philosophically opposed to property rights in innovation and are eager to confine the patent system’s ambit.
Well, I’m not “philosophically opposed to property rights in innovation,” but I do think we have too much IP. This isn’t about philosophy, it’s about providing the right incentives to promote innovation, and it’s not such an abstract claim to say that patents may inhibit progress when innovations build on each other.
And I wonder: will it ever be persuasive in the world of patent law to argue, “this doesn’t deserve a patent because it has too much potential as a stepping stone for future innovations and there are sufficient incentives for the innovator anyways”? Or will the legal criteria continue to focus on the kind of thing the innovation is at the expense of the economically crucial innovative climate.
