Unintended Consequences and the Patent System

The patent system, in the USA and many places besides, is broken. That’s an assertion that seems indisputable. Debate ensues only when we discuss what should be done to rectify the problem.

It’s at that point that disputants generally break into two groups: one specifying a need for further, tighter regulatory measures that insist a patentable idea be practically demonstrable in the form of a working prototype or a finished products; and another group, philosophically libertarian, that proposes the elimination of patent law completely. This latter group contends that ideas shouldn’t be fenced inside a regulatory framework, that they should be free to circulate.

I have some sympathy for the latter viewpoint, but I think the first approach is the only practical way forward. I acknowledge that further regulation could complicate and compound the problem. Regulation, after all, has unintended as well as intended consequences.

Patents are a prime example. The purpose of patents was (and supposedly is) to protect and foster innovation, so that individuals and organizations could pursue research and development, often at great cost and over lengthy periods, that would eventually result in commercialized products and services for the presumed benefit of — don’t laugh — the greater good.

Well, it hasn’t worked out that way in practice, has it? Instead, we have seen the rise of despicable “patent trolls” and commercial endeavors, such as Nathan Myhrvold’s Intellectual Ventures, that have no intention of developing and making manifest abstract ideas that the organization’s lawyers rush to patent after brainstorming sessions.

I humbly posit that the creation of patent trolls and companies such as Intellectual Ventures were not what the creators of patent law had intended to result from their work. Which brings us to the question: How is it possible to change patent law without entailing further unintended consequences?

Several proposals have been mooted over in the comments section at Timothy B. Lee’s Bottom-Up blog. There’s an urgent need for patent reform, no question. We just have to take care that the prescriptive cure is well considered, thorough, and mitigates the quantity and severity of unintended consequences.

In other words, we need to be cognizant that good intentions alone won’t keep us from stumbling along a wayward path to litigious hell.

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