Yet Another Anti-IP rant
This started out as a reply post on Eric Raymond’s excellent blog – Armed and Dangerous – but it turned into a long enough rant that I felt it should probably be posted on this blog as well. :-)
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The U.S. Constitution reads “To promote the PROGRESS of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”
Can anyone make a case for any specific patent ever actually promoting progress, let alone leverage it to the more general case that patents on the whole do more good than harm?
I have seen plenty of graphs depicting the measurable quantities of different types of engineered systems over time which display large jumps for the better at the point where key patents have expired. (E.G. http://www.fee.org/pdf/the-freeman/122008freeman-boldrin.pdf) But I have never seen a graph that showed the rate of progress (first derivative) decreasing upon the expiration of a key patent or increasing after the initial jump provided by the invention.
It is clear that once a patent is in place, innovation in that field is stifled, not promoted.
Now, there is certainly an argument that the initial jump provided by the invention of such key patents comes sooner, because many more people will compete to be awarded a lucrative monopoly. But I have never seen any measurable data to suggest that this rush to the prize compensates for the chilling effect afterward. And if the quicker invention value is to exceed the after-chill effect, then this must be an issue of length of the term for which the monopoly is granted. But while longer monopoly terms will produce greater effort to secure a key patent, they will also create a longer chilling effect. Additionally, it is worth noting that innovators pulled into this rush for the prize are being pulled away from other (possibly equally beneficial) pursuits – and during the chilling period, alternative ways of doing the same thing are pursued, so there is some loss to the “reinventing the wheel” issue.
To make the case that patents (or any form of pattern monopoly) do more good than harm, one has to demonstrate that the sum of the following factors has positive value:
Increased Value of early invention (positive)
Chilling effect after granting of monopoly (negative)
Other useful things invented later due to diversion of intellect both in the initial rush and in trying to find ways around the monopoly (negative – and with thanks to Bastiat’s “What is seen and what is not seen”)
Cost of monopoly enforcement (negative) – without which there is no incentive or chilling effect. This cost can be very very large, and includes not only direct law enforcement, but also such issues as lobbying and lawyering costs.
So, I submit that no one can successfully demonstrate that this equation will be positive, on average, or for any specific proposed future invention, for any given length of time over which it is proposed that monopoly rights should be granted – let alone for a single time period applicable to all inventions. And I further submit that this is true even before we consider the last (enforcement) term which we know to be a cost rather than an economic benefit of the granted monopoly.
This being the case, it is completely irrational to pass laws that distort free market solutions to the value equations concerning invention by granting limited term monopolies.