It seems that patent systems frustrate more and more people in information technology these days. From what I hear so far mostly patent holders, enforcers, their more aggressive practices, and abuse of intent of law are blamed for the trend.
I think there is another side of the story. Here is the foundation of my reasoning:
An invention patent is an exchange in it's core. A society promises an inventor the right to exclude others from using the invention for a period of time in exchange for the public disclosure of the invention.
For a patent holder this exchange is valuable as long as they are able to exploit the exclusivity period. The cheaper is the enforcement and the longer is the exclusivity period - the better business opportunity it presents.
For the society the exchange is valuable for two reasons. First, it guarantees availability of a non-trivial invention to a general public after a fixed period of time. Secondly, if done properly, it creates a double network effect - encouraging and enabling further inventions.
There are two concerns: (1) how did parties (en-masse) took care of their perceived obligations under the exchange and (2) whether the original premises are still as valuable and relevant as before.
The first concern is much talked about. The combination of patent being a sellable economic right, society's failure to guarantee exclusivity at a reasonable cost, and patenting trivial inventions - all contributed to a madhouse full of patent trolls, gorging lawyers, and companies clawing each other's throats. With disenfranchised individual inventors in the midst of it.
The second concern does not get enough attention - yet I believe it is directly responsible for the recent uproar against the patent system.
Up until recently (in historical time scale) inventors were rare and far between. There simply were not that many inventions around and businesses had the survival need to acuire inventions that were worth execution. It was also society's interest to avoid businesses hoarding inventions. Inventions themselves had value past the patent exclusivity period - meaning that it was more likely that the patent would expire without being re-invented, than someone else to come up with the same invention before the expiration. Think about it - if another inventor is very likely to solve same problem sooner than the exclusivity period is over, why is it a society's interest to protect the original inventor? The game of the exclusivity timeframe is a bet - where a society's bet is that it is more efficient to protect one inventor and give public access to the invention after a period of time, than to have the problem solved ad hoc individually by those who need it solved.
Nowadays a percentage of creative workers in the workforce is of no comparison to a hundred years ago. In information technology companies actually do foster conveyor-style innovation and blur the borderline between innovation and invention. When paired with proper prioritization, innovation happens with a fast enough pace to be considered invention after a short period of time. Invention is no longer driven by the lure of exclusively seizing an opportunity. It is driven by the basic modern business need to «innovate or die». Invention is no longer a differentiator. It is on par with the rest of business survival prerequisites: skills, priorities, motivation, and execution. Inventions no longer drive businesses. Businesses drive inventions.
What does this mean for patents?
For one thing it means that a society's incentives to grant exclusivity are much reduced. There is no upside the society has in exchange for the right to exclude. An ability to execute is a more scarce resource now, than innovation. Most benefit for the society is to incentivise not those who know how. But those who can prioritize, motivate, and deliver. And economy is doing it anyway. A business which gets priorities, motivation, and delivery right will find people to innovate and invent for it just fine - at the very least in information technology. May be in other industries as well, but I did not observe them enough in my life.
There is also no dire need for public disclosure of an innovation, should the innovator decide to keep it secret. It is very likely that someone will reinvent it faster, than the patent exclusivity period would have expired.
Looks like there is no benefit for the society to grant patents. Worse, patents get on a way and create frictions. Should information technology patents be just...... abolished?
No need to scream - “But who will innovate?!!!”
Employees and freelancers will. And academics at universities will - many tax-sponsored. Innovation is a part of a job for hire from now on.
And no Bosch-hell-like patent underworld.
This "Patent-less IT / what is your job" by Vlad Didenko is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.