Are ‘Open Source’ Patents Needed?

It’s occurred to me in the past year as I work on my projects that patents are a necessary evil, even if the plan is to Open Source a project. This seems counterintuitive, so here’s an example to help make it clear:

Imagine a world where the pencil doesn’t exist. There is just no convenient way to make marks on paper (sure we have the typewriter and the word processor – but bear with me, this is just a thought experiment).

Then someone invents the pencil. And decides that something this vital is too important not to share, and so ‘opensources’ it. Now the world can make permanent marks on paper everywhere, quickly and easily. Businesses grow providing these new devices, and older businesses grow as well (paper manufacturers, for example).

Sounds good – until someone invents the pencil with an eraser – AND patents it.

So now you have the ubiquitous pencil, free to all – but the the eraser is a game changer. Finally people can undo those mistakes without cutting up the paper, or throwing it away. It’s so valuable that no one wants an eraser-less pencil – and the inventor of the eraser becomes wealthy. At least, if he isn’t too greedy.

But alas, in our thought experiment, he becomes greedy. And people suffer because a device as useful as a pencil is so much more useful with an eraser, and only the rich can afford that eraser. But without the eraser, few people want ‘just’ the pencil. A great invention flounders.

The moral? If the pencil inventor had a patent, he or she could have dictated the terms for the second inventor, including reasonable pricing. Without any control, derivatives of their invention can make others rich, while they lose money and control.

I know I’m not being very subtle, but I’ve come to the realization that the only solution to a scenario like this is to patent first, showcase inventions later – even ones that are meant to help the world. And since patents are costly, then I guess they’ve done what they were meant to accomplish – reduce inventing and stifle innovation.

Not so you may say: Isn’t the purpose of patenting to promote innovation? No – it originally existed to provide exclusivity to an inventor. It is this enforced monopoly that was supposed to help, but of course today many patents are developed as walls to prevent innovation from competitors. And as a famous saying goes “no matter how smart you are, there’s more smart people working for someone else” – therefore, a patent ties the hands of the majority of smart people, since they don’t work for you. The end result is a reduction in innovation, not an increase.

Maybe it can be different. For example, perhaps there can become a pool of patents, sponsored by those people who want to see things open. The process is simple:

  • I have a patent idea I submit to this group. If they feel it has merit to benefit the world, they patent if for me, paying the fees.
  • The cost to do so is I accept a small royalty and they manage it for the life of the patent.
  • They in turn make the patent open – any and everyone can use it royalty free for non-commercial uses.
  • If someone wants to use it for business purposes, two options – use it for free provided they submit all their patents to the same process as I went through, or pay a royalty.

This has the advantage that people still benefit from patents, but they provide the option for others to further innovate. A look at the Open Source software movement should tell you that free and open development is a plus, not a minus. Not good for businesses, perhaps – but good for innovators.

Is it going to happen? I doubt it. More than likely, patents will continue stifling innovation. And as large companies file thousands and thousands of patents on generic ideas to ‘lock them up’, the chance that individuals will innovate will grow less and less. Combined with their near-bottomless pockets for corporate litigation, and I think I get an idea why there has been little or no change in some technologies for the past few decades.

For example, I’ve worked on at least three designs for my Braille reader device. But unless I build them, no one will know they work. Yet I can’t build them without proper financing, financing that depends on people seeing the project idea. However, I can’t show the idea without patent protection. And so on (I know, you could argue that I use a non-disclosure, or something of the sort. I’d recommend you watch “Flash of Genius” with Greg Kinnear, and ask yourself what good is paper if someone big doesn’t want to play along…) In the end, the large companies have the legal clout and financing to manage all the processes in that arena, but the ‘little guy’ doesn’t. The chilling effect is felt by everyone – not only the inventor, but by those who would have benefited. I know personally I’m curtailing most of my projects in the near term because of it, and I can’t believe I’m the only one.

In any case, we’ll always have large and well-staffed corporations developing new and (somewhat) useful products, so all is not lost. Frankly, the individual inventor is a bit of a waste of space, anyways. After all, what did people like Tesla, Edison, Da Vinci and others really give us, anyways?

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2 thoughts on “Are ‘Open Source’ Patents Needed?

  1. Interesting train of thought. I must say, I had never thought of it that way.

    What about open-source licenses that require any derivative work to be open sourced as well? Would that not make it possible for numerous manufacturers to provide pencils with an eraser, since this derivative work could be locked down? Am I missing something?

    • In theory, it should work. But in either case, patents and open source licenses are often at the mercy of rich companies with deep (legal) pockets; “Flash of Genius” highlighted that. Patenting at least could provide revenues to defend claims, and as I mention in my case, it’s the difference between development moving ahead or not.

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