Why we have patents

The Congress shall have power 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;

— United States Constitution, Article I, section 8

Yesterday, I commented about a specific patent that I don’t think should have been issued. I picked on it only because it’d just been brought to my attention; I think a very high proportion of the software patents that are out there should not have been issued. Most of them fail to meet the criteria for patents, specifically the requirements to be novel and non-obvious.

But I ended yesterday’s post with this statement: “That’s not what the patent system was meant for.” I want to take a longer look at that now.

At the top of this post is the paragraph from the U.S. Constitution that empowered Congress to create the patent system we have today. Look at what it says, because it tells us what the patent system was meant for: it was expressly meant to “promote the progress of science and useful arts”.

The patent system was not meant to protect companies’ investments, nor to create revenue streams, nor to support cross-licensing agreements — those are side effects of the implementation. It certainly was never meant to enable patent trolls, who patent things they never intend to realize or market, only to sue for patent infringement when someone else develops one of them into useful technology. That, too, is a side effect of the implementation, but is quite the antithesis of what the authors of the constitution had in mind.

When the Supreme Court made their 2007 decision — a unanimous decision from an ideologically divided court — they were going back to what the constitution intended: promoting progress. Allowing exclusive rights to minor, incremental changes in technology, as the patent system does now with computer software methods and systems, makes it extremely costly to push the limits of what we have, in order to develop something more grand.

Now, do you want to see some real innovation, something that’s not just a small increment, no ordinary innovation with predictable results? Try this recent TED talk by Pranav Mistry, from the MIT Media Lab, who developed a prototype system he calls Sixth Sense, which... well, go watch the TED talk. It starts off with some straightforward ideas, and gets more fascinating as it goes.

And if you watch it through to the end, when Mr Mistry answers a few questions, you’ll see that his approach is to make the programming available as an open source project.

That will promote the progress of science!