A month ago, I posted complaining about how copyright law has imposed costs on the rest of us, prompted by my frustration in trying to legitimately copy some files from a CD-ROM to an iPad. This morning I had an experience that added to my frustration with intellectual property law, this time in the form of patents.
The whole reason for having patent law is to encourage innovation, but at least sometimes I suspect it does the opposite. I was driving my son to school in an older car a cassette deck where the CD player ought to be, when it occurred to me that, given how small MP3 players are now, shouldn't it be possible to build one into a device that emulated a tape cassette? You just make a little induction coil or some such gadget to interface with the tape head of the cassette player, and use that as an output. Have sensors in the reel sockets to detect when the cassette thinks it's playing, rewinding or fast-forwarding, maybe even have them draw some power from them for recharging, and there you go. All the technology to do this exists; it should be fairly simple to build such a device.
As I thought about this, I realized that there were various hurdles to overcome besides the technical. The first one, I thought, from a business perspective would be market: how much demand would there actually be for this thing? I mean, there are still cassette players around, but for how much longer, and is it cost-effective for anyone to buy this gadget instead of just getting something up-to-date? But perhaps, if it were cheap enough, for people who just like their old stereo systems.
The thing that really gave me pause, though, was patent law. Surely, I thought, someone else would have thought of this invention before I did. And that meant that if I were to go out and create this device and try to sell it, I'd probably get sued by whoever registered the patent on it. Even if nobody else had patented it and I didn't want to apply for a patent myself, I'd still need to search through patents to ensure that I wouldn't be running afoul of someone else's rights by creating such a device.
This is all academic, of course, because I'm not at all technically adept enough to design and build this thing, and I'm not actually all that interested in marketing it either. (Also, I was right that someone else probably had thought of it, and built it. Turns out there are several on the market already.) But what I found striking was that of all the obstacles to turning an idea into a reality, the one that discouraged me the most was the whole business of patents. I just didn't want to have anything to do with the kind of research that would involve, and I've been to law school!
That's not to say that patent law always discourages innovation. For people and companies who have ideas with solid economic potential, it is certainly worthwhile to invest the time and resources in developing the invention and applying for the patent. But for borderline case? For things that might be useful? Here is where things get iffy.
Laws are generally intended to promote some sort of behaviour and discourage others, but it often turns out that the behaviour a law actually promotes is not the behaviour it's intended to promote. Cynically, some people (wrongly) say "it's only illegal if you get caught." More accurately, you're only punished if you get caught, but the point here is that people often consider it more cost-effective to modify their behaviour around the practical consequences more than the actual intention of the law.
Patent law is no different. As much as we might want patent law to encourage innovation, it isn't actually innovation that is encouraged, but the use of patent law itself. You aren't rewarded for coming up with and marketing a good idea so much as you're rewarded for applying for and asserting patent rights. Suppose two identical twins separated at birth independently come up with a brilliant idea, and both go through all the steps needed to develop it for market, but one of them applies for a patent and the other doesn't. Which one will reap the rewards? Clearly, all other things being equal (and here we've postulated that they are), it's the act of going to the patent office that's rewarded, not the innovation itself.
Again, I don't have a solution for this. I don't have an alternative to patents to propose here, anymore than I was able to suggest an alternative to copyright. But I do think we should be aware of how sometimes our policies work against themselves.