Monday, May 14, 2007

Playing the Rent IV—Patently Obvious

Word derivations contain a lot of history. The word “patent” comes from the Latin verb patēre, to be open via French, lettre patent, meaning “open letter. The “letter” was from the King. In short, a patent was a Royal Edict, and there are land patents, also known as land grants, as well as patents on inventions and processes.

So patents were, from the beginning, a form of patronage, and industrial patents were by no means limited to the inventors of an industrial process. In 1589, the English Gunpowder Patent was awarded to a man named George Evelyn, who invented neither gunpowder nor any particular process for its manufacture. However, Queen Elizabeth I (and her advisors; I’m going to go out on a limb here and conjecture that there were some substantial links between Evelyn’s family and the advisors to the Crown) believed that the manufacture of gunpowder would be more efficient if centralized in the form of a private monopoly.

Ah, there’s a question for libertarians: how much do you think times have changed?

The granting of patents in exchange for disclosure of trade secrets and other information about an invention is a very clever idea, and also has a long history. It makes very good sense, from almost everyone’s perspective, and it protects against the loss of vital information is a few critical people die without proper documentation of a process. Giving the patent a limited span is also a very good idea.

But we shouldn’t make the mistake of thinking that a patent is anything other than what it is: the use of the power of the state in service of a monopoly power. It can be considered “property” in the same sense that any other legal grant can be property. A long term supply contract has value, can be marketed, and so might be considered property. Financial obligations are also property, in a legal sense. But they are not the same as real estate or chattel property.

The patent on an invention gives someone control over all expressions of that invention for a period of time. That includes control over anyone who might independently come to the same invention, even if they had no knowledge of the prior invention. In fact, “priority” of invention is mostly a product of U.S. patent law; elsewhere it is more the custom to give priority to the first to file for the invention.

So what we have here is another example of “winner take all,” and what the winner gets is another example of toll-taking, the ability to block someone else’s use of an invention, even if that someone independently invented it.

There is a myth that a Commissioner of Patents by the name of Charles H. Duell once resigned or recommended that the patent office be closed because “everything that can be invented has been invented.” He said no such thing, but the number of Google hits for the mythical quote much larger than the number of hits on those who debunk it. To be fair, the highest ranking on Duell’s name does lead to a debunking site, with a guess as to its origin:

While that statement makes good fun of predictions that do not come to pass, it is none the less just a myth. Researchers have found no evidence that any official or employee of the U.S. Patent Office had ever resigned because there was nothing left to invent. A clue to the origin of the myth may be found in Patent Office Commissioner Henry Ellsworth’s 1843 report to Congress. In it he states, "The advancement of the arts, from year to year, taxes our credulity and seems to presage the arrival of that period when human improvement must end." But Commissioner Ellsworth was simply using a bit of rhetorical flourish to emphasize the growing number of patents as presented in the rest of the report. He even outlined specific areas in which he expected patent activity to increase in the future. –The Charles Duell Rumor (see also Sass, Samuel. "A Patently False Patent Myth." Skeptical Inquirer 13 (1989): 310-312).

I have heard, but have been unable to confirm, that Duell did once write a report where he suggested drastically curtailing the number of patents awarded, and the ease of obtaining a patent, not because “everything has already been invented” but rather because corporations had taken to using patents to suppress innovation rather than to advance it.

That has some truthiness to it, doesn’t it?

Patents are often used as weapons in the epic struggle of corporations, after all, and it is seldom innovation that comes out the winner. Corporations also use other things to similar purposes, one famous example being the duel between Philo Farnsworth, the actual inventor of television (more precisely, the orthicon tube), and David Sarnoff and RCA. RCA used its market dominance to try to suppress Farnsworth, and tried to “invent around” Farnsworth’s patent. RCA failed in the latter attempt, but had substantial success in the former endeavor, with the result that the battle, plus the advent of WWII, essentially delayed the introduction of television for at least a decade, and maybe twice that. And RCA propaganda credited Vladimir Zworykin with the invention of television long afterwards.

Recently, the Supreme Court has decided to make it more difficult to obtain a patent, or, more accurately, easier to claim “obviousness” in a patent challenge, in order to make it more difficult to patent such things as “buying groceries over the internet.” So maybe a little more sense is creeping in.

I have a friend who got a patent on what amounts to “machine based telepathy,” based on MRI imaging of the brain. He observes that it will probably be 20 years or more before MRI technology advances to the point where it would have any practical applications at all, and by then, the patent will have expired. That, in fact, was exactly his purpose: to make sure no one tied up the technology and delayed it longer than the natural advance of engineering would take.

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