The delicate subject of patents

Obesity is proof, if ever we needed it, that human beings have an innate lack of understanding of how much the society in which we live has changed.

Our evolutionary antecedents lived in a world of uncertainty and anxiety, more so than today.  Food was seasonal, and seasons could be good or bad.  All the more reason to tuck in and put on the fat while the going was good.  Those with a better ability to store weight would better survive future famine, drought, fire or flood.

Circumstances have changed.  Our intelligence has allowed us to circumvent circumstance.  We don’t need to store fat against future lack; we can just head down to the supermarket.

Our biology hasn’t adapted to plenty.  Unfortunately, our politics hasn’t adapted to scarcity.

Ownership of physical things is relatively easy to understand.  Farms may be very expensive to buy and operate so, if we want farmers to invest in land and produce food, we need to give them an exclusive right to own that land.  If the law is arbitrary, and ownership can be taken away at the whim of the men with guns, then food production becomes just as arbitrary.  Hi there, Zimbabwe.

Many countries (maybe not the majority) recognise this and are willing to grant this exclusive right of property ownership in order to ensure a stable society.

This works just as well for factories, machines, cars and houses as it does for farms.  We even recognise that a property can be owned in perpetuity and sold on by an owner to others, or even passed down to one’s heirs.

In this way, demonstrably scarce resources can be allocated to those who are best able to return a good yield on the cost of ownership.  This works so well that it has formed the bedrock of the path to wealth and economic stability.

The problem comes in when we consider the property created by our minds.

Just as many people constantly battle the conflict caused by a biology that wants to store as much food as possible, even though food is plentiful (known as “the problem with dieting”), so regulators struggle with intangible property.

How should intellectual property - the ideas that minds produce - be treated?  And how should parallel inventions be handled?

Whereas there are numerous farms available for purchase, patents only go to unique ideas.  You get nothing for coming second.  Elisha Gray is virtually unknown except for the scratchings of alternative history buffs.  Gray came second in the race to patent the first telephone and the spoils went to Alexander Graham Bell.

The purpose of a patent – an exclusive monopoly on the ownership of an idea – has always been to promote investment in innovation and scarce new ideas.  Patents aren’t given in perpetuity, but the duration of that monopoly is quite arbitrary. 

Pharmaceutical companies can justly point to the expense of their investment in bringing a new drug to market, and the brief period they have to recoup their expenses before losing their patents.  Software and Internet-based companies can justly point to the pace of development and that lengthy patents act as unnecessary blockades to further innovation.

The spoils of the system are so great that it leads many ideas to be filed purely with the intention of extorting cash out of companies already heading in that direction.  Such “patent trolls” lie in wait for the work of others to become successful and then sue them for a share of the profits.

As the trolls demonstrate, some ideas really aren’t that novel.  The result of all this patent obesity is that companies spend endless cash and time fighting legal battles.  Sadly, this is having the opposite effect that patent law originally intended, limiting innovation and scaring away genuine innovators.

Time then for a new look at intellectual property; time for a patent diet.