OK, I really didn't mean to return so soon to the subject of patents. It's not really on my my list of the most pressing issues facing society. But sometimes something grabs your attention, and just won't let go until you take an opportunity to vent.
When I previously questioned the basis of patents, it was based on their value to society. Today, I’d like to explore a different but related concept: Are they fair?
Of course, there’s no simple answer to that. Fair is a cultural concept, and different people have widely different definitions. Most people would have trouble in providing a useful and consistent definition of “fair”, but instead fit into the “I’ll know it when I see it camp”. If enough people have a similar reaction, then that’s a reasonable approximation of “fair”, and I’ll go with that for now.
On 11/27/2011, the New York Times profiled an enterprising high school student named Katherine Bomkamp. Inspired by visits with amputees at the Walter Reed Army Medical Center, she set about to build a prosthetic limb that would treat phantom pain.
Her idea, to treat the stump with heat (under the principle that the same treatment works on strained muscles) is brilliant in its simplicity. This is not a new problem, and her solution does not involve new technology. It’s simply a new idea that somehow eluded generations of doctors and inventors. Assuming the tests confirm its effectiveness, and the patent search confirms no pre-existing technologies, then I will heartily agree that her case is exactly the sort of situation that patents were designed for. I would consider it criminal if a major medical device maker simply took her idea without compensating her.
A patent in this situation fits my definition of fair.
But now, imagine you’re a talented electrical engineer named Elisha Gray. You've spent an enormous amount of time and energy creating a revolutionary new device that is capable of sending the sound of somebody’s voice over electrical wires. The implications are staggering.
You triumphantly take your idea to the patent office, only to discover that the same idea was filed a matter of hours before yours. Not being awarded a patent is frustrating. But infinitely worse is that you are now legally prohibited from using your own invention without paying royalties to somebody else. I’ll leave the accusations of theft and conspiracy out of this for the moment. People may differ, but I classify this as “not fair”.
If multiple people are inventing the exact same idea at the exact same time, then it’s not clear that it’s fair or beneficial to restrict one person’s rights in favor of another’s. It's simply an idea whose time has come, and it would be hard to argue that a third or fourth person wouldn’t stumble onto the same idea in a fairly short period of time. The question is, how frequently does this happen? Aside from the invention of the telephone (and calculus), do we really have an avalanche of competing ideas all coming to light at the exact same moment in time?
I say yes, but don’t take my word for it. Instead, let’s look at a recently passed, and heavily lobbied, law called the “America Invents Act” (passed on September 26, 2011).
One of the key provisions of this act is that it switches the U.S. patent system from a "first to invent" to a "first to file" system. Many people have argued about which of these methodologies is more fair, but it certainly has the advantage of being simpler to manage. Figuring out exactly when the process of invention occurred is an exercise in mind numbing frustration. I'm personally not in the habit of keeping a full diary of every thought that crosses my brain as I shower each morning. Trying to settle a dispute between multiple inventors, all of whom have spotty record keeping but huge financial incentives to win, is going to be arbitrary and capricious. At least a filing at the patent office comes with a reasonably accurate timestamp. Fair or not, at least it's closer to objective.
This was a very hot topic, and a lot of lobbying money was spent to get it passed. The question is: would anybody have cared if most patents went uncontested? Of course not. The only reason why this becomes a hot button issue is that these types of collisions happen all the time. We are living in a fast moving age, surrounded by ideas whose time has come. Granting multi-year exclusivity to one person or organization because they were a day or two faster to file the patent application than somebody else with the exact same idea is not in the best interests of society.
And more than that, it’s just not fair.