About Patents. Again
For me, in the regard of granted temporary intellectual monopolies (patents, but also some non-artistic copyrights), we as a global society need to answer two big questions, and then act politically to change ours' countries laws and international agreements:
1) Do we need more innovation? At what pace?
2) Do we want those innovations to be widely available and affordable?
My personal answers to those questions are:
1) Surely we need and as fast as collectively possible to create the innovations and to materialize and put them to use. And I think that, excepting a few Luddites and Zen masters, this would be the near unanimous answer.
2) I believe that to be also a qualified yes. But here lies a more controvertible topic, as many people (Liberals, etc.) want those innovations to be affordable to them and their circle of friends, but doesn't care if it is available and affordable to others.
Now to recap the logic, the original one, about patents:
*[A] There are a very small number of people with enough knowledge in their field of expertise to be able to innovate in that space.
*[B] These people would prefer to retain that knowledge and dispense it only to a few chosen apprentices, so that their small circle can benefit directly and/or commercially from it.
*[C] A temporary monopoly on new knowledge, with legal enforcement of it, would be the bait to make these people make that knowledge public, and free for anyone to use after the monopoly period.
*[D] Some non-obviousness and novelty criteria would be applied to recognize new knowledge that could be protected by that temporary monopoly.
Well lets focus on the Information Technology field, what encompasses software, chips, web, smart mobile devices, and many more hot trending technologies...
[A] Obviously there are some niche sub-fields (like 'ultra high density chip making') where that scarcity of knowledgeable people still holds, but for most of the field there are plenty of people well versed to innovate: for instance, tens of millions of software/web/mobile developers (even if you disqualify our digital teens), hundreds of thousands of electronics engineers.
Yeah, I'm counting global numbers, as in our connected world there is little to prevent innovation coming from geographically distributed, multiple nationality, teams.
So the scarcity assumption is likely false nowadays, at least in this field...
[B] Let me ask the meat issue here: What is the likelihood that someone can nowadays substantially advance any field without an extensive network of collaboration? Remember that for collaboration to occur one need to share/exchange knowledge with those that participate in it, but yes, collaboration can be done in a behind-doors, limited sharing, fashion.
Nevertheless, again in this field, open collaboration, with free participation from anyone who wants to contribute, as demonstrated by Free and Open Source Software projects/communities, leads to lower cost, high quality, and widely available innovation, which is slowly becoming the norm.
Also the number of competitors in the web space, for instance, where the cost of entry is very low, simply means that mere copycats can't survive the market, as it evolves astonishingly fast: for example, cellphones are increasingly sophisticated gadgets that billions of people, some still functionally illiterate, managed to learn how to use in the last decade, and those billions as they migrate to smartphones are creating an exceptionally large new market for mobile applications and content.
In that vein, I believe that even if people want to hold out knowledge it will be shared by someone else that independently came to the same conclusion/idea and wants to collaborate to make it evolve even more. So that assumption is not necessarily false, but mostly irrelevant.
[C] If knowledge is increasingly shared, and collaborations over it allow for even more knowledge to be found/built, well any legal monopolies over it will effectively hamper not foster innovation. It will add process costs to negotiate terms for 'licensing' what will be shared, even if it will be licensed free of royalties, and running costs for any RAND licensing.
But I would propose here a crowd-task: Can we find the global numbers to correlate all the royalties collected, and then factor out how much of it was re-invested in corporate Research and Development or grants to scientific research at academia? Also it would be nice to value how much those patented innovations benefit from open science knowledge, can we find and sum it up?
With those numbers it would be easy to reason, if opening even more the basic science and fomenting the open/collaborative projects for technology, would be a better approach than letting corporation compete armed with their monopolies.
Besides the form of the temporary monopoly was very badly designed, as it allows the monopoly holder to preclude all usage of the knowledge until the privilege expires, even if the holder doesn't materialize any products embodying that knowledge in that period. It is such a nonsensical provision that I can't understand how it wasn't fixed over the centuries. It is the kind of non-sense that allows judges to say something like "that Microsoft can legitimately use patents to try to destroy Android" with a flat-face.
But worse, even if the monopoly could be made conditional on materializing as soon as possible some of the benefits the protected knowledge could bring, there is the issue of it's duration, that is also something in the law that didn't evolve to cover the completely new situation we live in. For this field, 20 years of protection, is simply too much, even market-wise it is an absurd to have someone holding competitors from offering alternatives or evolving over present ideas.
For example, most users won't keep using non-essential web/mobile apps that doesn't evolve each few months/weeks. I keep coming to Angry Birds on my Tablet because new phases, birds, themes are added from time to time...
At a minimum, even if this whole argumentation doesn't politically engender more drastic revisions, we need to reform the granted monopoly, to guarantee timely access to the benefits and reduce, maybe selectively with the field, its duration.
So [C] can be assumed to be false for the field pending those numbers, but still quite positively, given the track record of success of FOSS projects and of products embodying them.
If Android, which deeply depends on FOSS and evolves on wide networks (sadly, not all truly open) of collaboration, wasn't a huge success it would not be so feared and the target of such a high number of patent lawsuits.
Finally, there is plenty of evidence that the law clauses construed from [D] were totally forgotten on the practice of Patents offices, throughout the world. Even returning to more sensible practices, to avoid big losses around lame patents like in the EOLAS case, would be an enormous improvement, but the assumption is false, because it depends too much on interpretation, and due diligence, to make the system well balanced.
The conclusion is simple, the system doesn't work because:
1) It doesn't guarantee the timely reaping of benefits from the shared knowledge it should promote.
2) It costs too much to operate with the current imbalances in power
Which are in direct collision with positive answers to those two questions I started all this rambling with.
I'll present mine, but I want just to help starting the discussion with all stakeholders (roughly everybody in the world, even those currently 'unconnected'), and also for the political action to take place on its conclusions, and not be misdirected by the lobby of just some powerful corporate stakeholders...
The design key. Global Cooperation, Local Coopetition
My preferred scenario would be to have a few years down the road government funding truly open science, and for industries collectives funding open research and collaborative projects for reference designs and standards, with local customization and production. It is globalized research, as the ever increasing scientific-technological knowledge body is one of the truly global commons, partially global project (global core, local customization), and as much as possible local production.
For that to work patents should be dismissed for open global knowledge pools, with 'research credits' being acquired by adding to the pool with meritocratic valuation and being expended by receiving financial grants from the pool for further research.
The fundamental change given positive answers for those initial questions is to transform:
Closed Knowledge equates Profit (all the ethically-wrong IP 'industrialization', by artificially faking scarcity over a plentiful inexhaustible resource)
Open Knowledge equates Innovation, Materializing/Distributing Innovation equates Profit
That is tall order, to do locally (within the national borders) and globally (overriding the competition of nations [with borders] and transnational corporations [no borders]).
The final thought is:
Innovation, per se, isn't an intrinsically valuable thing, what makes it valuable is its ability to solve problems, to attend needs or to enable further innovation that accomplish that.
If we could solve all our problems and attend the needs of everyone with what we know about or know to build, there would not be the need for innovation, but that is simply impossible, the universe won't stay put, it also evolves, it also innovates every second...