“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”*…
… It’s illuminating to point out that all three transformative technologies of the twentieth century – aviation, the automobile, and the digital computer – started off in patent battles and required a voluntary suspension of hostilities (a collective decision to ignore patents) before the technology could truly take hold.
The Wright brothers won every patent case they fought, and it did them absolutely no good. The prospect of a fortune wasn’t what motivated them to build an airplane, but ironically enough they could have made a fortune had they just passed on the litigation. In 1905, the Wrights were five years ahead of any potential competitor, and posessed a priceless body of practical knowledge. Their trade secrets and accumulated experience alone would have made them the leaders in the field, especially if they had teamed up with Curtiss. Instead, they got to watch heavily government-subsidized programs in Europe take the technical lead in airplane design as American aviation stagnated.
If you are someone who believes that the Internet and computer software are a transformative technology on a par with aviation, you may find it interesting to note that there is now a patent cease-fire in effect in the world of software, the occasional high-profile infringement case notwithstanding. The reason for the cease-fire is simple: if companies like IBM, Xerox, and Sun were to begin fully enforcing their patent portfolios, it would mean an apocalypse of litigation for all software developers. Everyone understands that the health and growth of the Internet are contingent on ignoring the patent system as much as possible.
At the same time, more patents are being granted than ever before, for broader claims, and with an almost complete disregard for prior art. Entire companies – and not just legal firms – are basing business models on extracting money from the patent system without actually creating any products. And the boundaries of patent law are expanding. For the first time in history, it’s possible to patent pure mathematical ideas (in the form of software patents), or even biological entities. The SARS virus was patented shortly after being isolated for the first time.
But if the patent system doesn’t even work for the archetypal example – two inventors, working alone, who singlehandedly invent a major new technology – why do we keep it at all? Who really benefits, and who pays?…
Learning from (the unhappy experiences of) the Wright Brothers– Maciej Cegłowski explains why the U.S. patent system is counter-productive: “100 Years of Turbulence.” Eminently worthy of reading in full.
See also, Bruce Perens: “Software Patents vs. Free Software.”
* Bill Gates, Challenges and Strategy Memo, Microsoft, May 16, 1991
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As we apply our intellects to intellectual property, we might recall that it was on this date in 1976 that Steve Jobs, Steve Wozniak, and Ronald Wayne signed a partnership agreement that established the company that would become Apple Computer, Inc.– a company all about the IP– on January 3, 1977.
Wayne left the partnership eleven days later, relinquishing his ten percent share for $2,300.
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