26 March 2009

Patents Fail to Make Patent = Patent Failure

WIPO has just published a study entitled Dissemination of Patent Information. I've not read it, but here's someone who has, with an interesting observation:

In the first 71 paragraphs of the study, theoretical availability of patent information is confused with dissemination of patent information. Indeed, the study itself, belatedly, recognises the distinction between the theory of patent law and disclosure and the reality of accessing useful patent information in paragraph 72. Here the study states that availability of information does not always mean it is accessible in practical terms. Based on the figures provided in the study, in practical terms, accessibility of patent information is quite poor.

In other words, the one thing that patents *must* do - to disclose and make patent - they generally do badly. The net effect is that patents take away from the knowledge commons, without giving back even the paltry payment they owe. Add it to the (long) list of why patents fail. (Via Open Access News.)

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Anonymous said...

This is especially true of software patents, where the code never seems to be disclosed.

glyn moody said...

You're right, and it's even more outrageous, because what tends to get patented are things like "progress bars" which aren't even software, but general ideas for software - which can't even be patented.

saulgoode said...

There is an analogous point to be considered with regard to the application of copyright protection to software and its ultimate benefit to society. When the copyrights expire on a traditionally protected work (literature, painting, music, et cetera), society basically receives full access to the knowledge and creativity inherent to that work. While we may not learn of the instruments or techniques employed in the creation of the work, those aspects are typically easy to discern and/or generally less significant than the work itself.

In the case of software programs where the source code is not initially made available, there is no requirement that the source ever be revealed and thus upon expiration of the copyright term society garners access to only a portion of the work's utility. The paltriness of the eventual worth of such closed-source works entering the public domain is especially exacerbated given the rate of advance of computing technology whereby 50 (to 120) years from now it should be expected that the binary executables of programs such as Excel or Photoshop will hold effectively zero value.

That is not to say that society gains nothing by affording some sort of monopoly privilege to closed-source software works -- there is the economic incentive to create potentially useful products which would otherwise be readily duplicated and distributed with no compensation to the creator. However, the ultimate and eventual benefit once that product is freed of its copyright shackles is not nearly so great as that garnered by society with copyright privileges when afforded to the source code of software programs itself.

Certainly it is far more incumbent that the cost-benefit analysis of software patent protection be resolved at this time. But as governments, whether legislatures or courts, address the efficacy of copyright laws past and future, the distinction between the benefits afforded from open-source versus closed-source software protection should also be taken into account.

glyn moody said...

Indeed: people seem to have forgotten that the intellectual monopoly is supposed to be a quid pro quo for giving back; but what is given back is of diminishing worth.