Students, inventors, innovators of all kinds learn by studying how previous innovations were done. What the patent system does is assure that this information–how things work–is “open sourced” for all to learn from. In order to get a patent you must disclose how your idea works “so that someone skilled in the ordinary art” of your field can duplicate it. That is, you have to give up your trade secrets. This requirement, by the way, is why many companies do not file software patents–they don’t want to share their ideas.
When a software patent application is filed, 18 months later it is made public. Typically this is 2 years before the application will even be considered by a patent examiner. This means that ideas are in the public sphere, the commons, for all to learn from well before any property rights have even begun to be considered for the inventor.
Most patents are rejected by the patent office. Months ensue, and typically if any patent is attained it is for a much narrower scope than originally asked for by the inventor. Meanwhile the key ideas have now been in the public domain for typically about 5 years–all the time fueling innovation.
Patents drive innovation because they spur inventors to try to work around and improve existing technology. Unpatented ideas often become the basis for popularization only because they are free, and thus stifle innovation.
Consider an analogous case from another field: Why do you think the King James Bible is the most published? Is it the most current or accurate or scholarly? No. Hardly. The King James is long out of copyright. Publishers make high profits from publishing and promoting it.
Why is Apache the widest used web server? Is it the best possible web server? No. Hardly. It is the cheapest.
Same with Linux. What is Linux, but a clone of Unix. A commodity. Why is it popular? Because it is best? No. Because it is cheapest.
Have Apache and Linux spurred innnovation in operating systems? No, they have dampened innovation by making it nearly impossible for any company to make money in operating systems, and thus afford R&D investment. Sun was the company innovating in the Unix tradition. What has happened to Sun? It has been wiped out by Linux-based competitors, and become a notably unsuccessful and non-innovative open source company. When is the last time you looked to Sun for leading edge innovation? In the late 80s, before the commoditization of Unix/Linux.
Ironically, the best spur to innovation in operating systems is Microsoft Windows. Why? Because customers are willing to pay to use it, and thus prospective competitors know they might be able to sell an innovative contender. Who has taken advantage of the Microsoft Windows opportunity? Apple, by investing R&D in a highly innovative advanced version of the Unix/Mach lineage, building on user interface ideas from Xerox PARC innovation. Who has the best operating system for small computers? Apple.
Thomas Jefferson invented the American patent system as a way to provide incentives to inventors to open up their trade secrets. The quid pro quo was that inventors who would share their ideas got a limited-time property right to their inventions. This has worked brilliantly in the US for 200 years.
Don’t believe the anti-patent PR. Note what companies are behind it: IBM, with control of 45,000 patents, including 37000 directly owned in its name, and 3000 patents filed newly each year. And Intel, whose CFO coined the term “patent troll.” The celebrity lawyers who argue against patents, such as Larry Lessig, work for centers funded by IBM and other large patent holders. These lawyers are not, notably technologists. By contrast, look to real, pioneering technologists, such as Bill Joy or Danny Hillis. They are, wisely I think, supporters of patents. Hmmm. Think about it.
