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Andrew's Mailbag My piece on patents on Tuesday received a record number of votes of disapproval for a Reg article. I'm not in the least bit surprised.

That's because in my analysis I advance an argument you don't hear very often in the tech world. Which is that the patent system gives us a huge social benefit.

It's an irreplaceable component of industrial organisation that produces and propagates invention. Yes, the system is frequently gamed, it generates avoidable costs, it's unnecessarily complex, and it creates many absurdities. It can be misused as a competitive weapon. Yet, when all's said and done, we're richer because of it.

The core idea - giving a short-term exclusivity to an inventor - is the best thing we've come up with so far to unlock value and spur innovation. And, in the absence of even one half-decent alternative, it follows that we need to do is try and fix the system, not discard it.

Yet here's what's very peculiar. My view is simply the mainstream one. It's very tediously conventional. Only in the online technology news echo chamber does my argument sound strange, for on the subject of patents, the echo chamber takes a radically different view of patents to the consensus of industry.

Inventors share my "let's fix it" position on patents along with people who invest in innovation, almost every sovereign state on the planet, and those involved with the international legal framework. I shall concede it's true that North Korea is not a supporter nor a member of the international patent system, overseen by the World Trade Organisation. Nor is Liberia. Or Yemen. So although patent-haters do not stand completely alone in the world, they are not offering us shining examples of economic success not any models we would wish to emulate. In truth, even most anti-intellectual-property agitators who get very angry about copyright acknowledge the quite staggering creativity and innovation that is unleashed by the patent system.

Cruel dictator Kim Jong-il bravely kept
North Korea out of the Broken Patent System

For example, the UK has undertaken two fairly hostile reviews of intellectual property rights in five years: Gowers and Hargreaves. Yet both reviews strongly asserted the value of the patent system, recommended easier access to justice, streamlining the granting of patent protection, and a higher quality of inspection - all sensible moves widely supported.

Naturally, I got some email in response to the article. To begin with, here's one from a reader called Richard reflecting a tech blogosphere view. He starts sensibly enough:

Inventors, like scientists, stand on the shoulders of giants. Apple's innovations, though significant, represent perhaps 0.1 per cent of their product.

So it's not right that they benefit from the public domain, without giving back. Apple got C from Ritchie; they got OS X from BSD; they got the WIMP [windows, icons, menus and a pointer] idea from Xerox; they got the portable music player from Sony; Safari from KDE; etc. They were welcome to all those ideas. But it looks immoral and bullying to then deny Samsung the right to copy some trivial features (even IF Samsung did copy them, rather than simply arrive at the same, obvious, conclusions to some problems).

Also, it's one thing if a patent prevents reverse-engineering or copying: but most patents simply deny a totally independent person the right to use their brains to reach their own solution. Patents are supposed not to be granted if the "invention" would be "obvious to a practitioner skilled in the art"; sadly virtually all patents that are granted would fail that test.

I replied with a couple of observations:

Firstly, an invention has to have an element of novelty for it to be a valid patent. It doesn't have to be much. Patent applications freely acknowledge prior patents, and where they differ. I simply don't understand the argument that "it's not right they benefit from the public domain without giving back", because very soon the Apple patent will be "given back" to the public domain whether Apple likes it or not. Instant reciprocity is not a moral obligation. Cute idea, though.

Secondly, your moral argument boils down to "two wrongs make a right". So what? That leads you to an ethical judgement but not a workable legal framework. Laws require somebody to be tried by citizens for a specific offence - not for "being a bad 'un".  I believe most criminal justice systems specifically exclude prior convictions which might prejudice this.

Richard replied:

What I'm driving at is this: The scientific and technical community has always researched, invented, published and shared ideas. These are freely given. 99.9 per cent of what Apple produce is done by standing on the "shoulders of giants": they get it from us; it's only fair that they should give it back (by allowing free access to their ideas). If Apple don't want to share, they don't have to - but they shouldn't expect us to share with them either; conversely, if they take and use what the community shares with them, Apple are IMHO morally obligated to share alike.

What's worse is that Apple are using legal monopolies to prevent other people thinking the same thoughts and independently solving the same technical challenges. (A patent is essentially a legal right to deny other people the fruits of their own mental labour.)

What I think is most immoral though is where Apple obtain and enforce patents on inventions that they didn't invent! For example, the multitouch pinch/zoom idea has been around for many years. The USPTO granted Apple a patent, despite prior art, and they have then used this to bully others.

Samsung hasn't done anything wrong at all. Even a "valid" patent is (IMHO) morally wrong... but in this case, the patents concerned were clearly wrongly awarded. (Typically, the Patent Office presumes that it should grant any patent that is requested unless it's flagrantly erroneous, assuming that the courts will litigate over the validity; the courts tend to assume that if the patent has been granted, it must be valid!)

So there you go: all patents are immoral.

And furthermore, if you do invent something, you have to give it to Richard.

The misunderstanding here, I think, stems from a generalisation. Scientific hypothesis should indeed be open. But you can't actually protect scientific ideas except by keeping them secret. A patent is not a hypothesis, however, it's a new method. Patent protection gives a very short period of economic exclusivity to exploit that method. Both are ideas, but ideas with very different properties and expectations. To generalise across them both loses what is unique and valuable about each one.

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