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The non-obvious utility of patents

Different people have described the Metabolite patent, currently under review by the US Supreme Court, as being about protecting a fact, but if you could patent the fact of homocysteine’s correlation to B12 levels, then we’d all owe Metabolite licensing fees just for existing in a state of B12 homeostasis.

To play devil’s advocate, I read the patent as applying to the observation of the relationship. As such, it is a bit as if Galileo had filed on his observation that the earth orbited the sun. At the time, his view certainly met the USPTO’s criteria of originality, utility and non-obviousness.

There is a dangerously bumpkinesque notion afoot, which holds that patents obstruct progress. This is (pardon the pun), patently false. Why is it that the most vociferous critics of the patent system, the citizens of the web – people who can understand that markets are conversations – can not seem to grasp that patents are conversations, too? Patents protect the free flow of ideas within our business, academic and entrepreneurial cultures.

Before we blitely trash the Patent Office, let us be clear on the actual ethos of patent protection. The point of patents is not to protect the patent-holders; it is to allow the rest of us to read the patents, adding to our collective knowledge base. The protection provided is a carrot. Nothing more… By offering a proprietary position on a piece of work, for a fixed period of time, we gain permanent open access to the idea and the process that led to it. The granting of patent rights is a collective cultural and financial investment we all make – and if you’re a libertarian, this is the kind of tax you want to pay. For the applicant, the filing of a patent is a form of open intellectual engagement with the world of ideas, a bit like the exercise of free speech. You can also call it opportunism if you like, but it’s a functional question at root, not a moral one. Like them or not, patents and the culture of open exchange surround them foster more innovation than they retard.

Look at Gallileo: had he been able to hand a patent application over to some proto-Jeffersonian (the US’s first VP took patents home in his briefcase every night), rather than having to lobby a bunch of recalcitrant ‘experts’ in skirts and surplices, he might have enjoyed some freedom from worry and gone on to further acts of creativity. If not by profiting from his work, at least by virtue of the systemic protection afforded by the very existence of a patent office.

We tend to blindly assume that all great men and women we admire maxed out their creative potential – they achieved greatness, didn’t they? But if you look at their histories, you find that usually they limped to greatness under extremely unfavorable conditions. The culture of the patent has gone further toward ameliorating this culture-retarding situation than any other institution in the history of mankind. And it can go further.

There are plenty of valid arguments out there for why our patent system is broken, like this one comparing the USPTO to Bastiat’s Fallacy of the Broken Window. And there are also plenty of ways to fix it. But I am concerned about the baby in the bathwater. Why should these protections not apply to the inventors of non-corporeal stuff, as well as thinkers whose contribution is to connect non-obvious dots? That’s not a rhetorical question, so please do answer it.

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19 comments to The non-obvious utility of patents

  • Markets are generally conversations that are only mediated by the state when things go wrong. The percent of the time that the patent is mediated by the state in the form of lawsuits and judicial orders is much, much higher. To a certain extent, this is because the normal activity of the market in buying things leads everybody to congregate and advertise prices. This is simply not the case with patents. It is very likely never going to be the case with patents.

    You have a brilliant idea. You’re sure nobody’s ever done this before. You create a product and 3 years later find a lawyer at your doorstep asking for fees because somebody else, 4 years prior, had written up a similar idea and paid his patent fees. Where, exactly, is the conversation? You’re constantly “buying” patented ideas without any idea that you are doing so and incurring significant unplanned expense. The volume of patents granted every year is beyond the capacity of anybody to follow. It’s a pretty good bet that even diligent research is going to miss some patents along the way.

    So what’s the solution? First, let’s contain the mayhem and shorten patent periods. Second, we need to develop information systems that create a better chance that new products don’t inadvertently infringe. Third, we need to streamline the settlement process when things go wrong.

    No doubt there’s more to do but this would be a good start.

  • Anonymous

    I know it’s not called Libertarian Samizdata anymore, but when did it become Utilitarian Samizdata?

  • Patrick

    Why should these protections not apply to the inventors of non-corporeal stuff, as well as thinkers whose contribution is to connect non-obvious dots?

    I’d love to answer your question, but I don’t really get it – what do you mean by ‘non-corporeal stuff’?

    If you mean processes, such as business method patents, I think there is a reasonable case. If you mean something more like observations of facts or processes, then that seems harder, because there is nothing to protect – you cannot infringe by making the same observation, and you cannot infringe by relying on a naturally occurring physical state to continue to exist.

  • Patrick

    feel free to replace ‘b’ tag with ‘br’!

  • Nate


    Have you used the info system at the USPTO?
    It’s not ideal by any means…but it’s pretty good.
    I believe that all patents after….ummm….1977 (???) are online, searchable, downloadable and viewable (in TIFF).

    Some business partners and I were using it last summer and it exceeded my expectations by quite a bit.

    The real problem in patent infringement, as such, is not in finding prior art, which is much easier due to said info system, but rather in the gray areas of the “claims” of a patent.

    That being said, I would support a shorter patent term for many types of utility patents. However, I would be even MORE enthusiastic for a shorter limit on *copyright* which is up to…what?…90 years, now, here in the USA. Death + 30 for individuals or 30 for corporations seems just fine to me.

  • Patrick

    Agreed that copyright terms are definitely a (much) bigger problem.

    Greedy damn lefties!

  • 1skeptic

    What exactly is the utility of patents? do tell!

  • Patrick

    She already cited the principal justification:

    publication and transaction costs.

    The secondary is recompense and the incentive to invent, but that is somewhat less solid.

    That which would otherwise be protected by secrecy at great cost (to the users and the greater public) and difficulty is made public, but restricted in its use. Thus, apparently, humanity is enrichened at greater speed than would otherwise be the case.

  • Uain

    “That which would otherwise be protected by secrecy at great cost”…

    The cost of a Trade Secret derives from all you need to do to completely document the timeline of invention and implimentation on a product; and then defend this in court if some one else files a patent on the same idea at a later time. This outcome is usually a given in that people with similar education, experience and faced with the same problem invariably arrive at the same solution, exspecially when reduced to patent claims.

  • Stoatman

    Without patents, what is the incentive for a company to spend millions on R&D to develop a product and bring it to market when another company can immediately reverse engineer it at significantly less cost and then market an identical product at lower price? without patents you wouldn’t have your superduper technology that you enjoy every day, since development would be utterly economically unviable.

  • llamas

    Very well said.



    (who is the inventor of 32 US patents, but not that I’m biased, you understand)

  • The disclosure aspect of patents is the system’s Achilles’ heel. With today’s custom manufacturing, a product just similar enough to undercut the market for the patented invention without infringing can be manufactured almost immediately. And if one can assume that the altered invention is not quite as good as the patented one, the market gets lower-quality goods. The cost of the law-driven alteration is a waste, as is the cost of defending the patent.
    Unfettered competition works better.

  • Stoatman


    Name me an actual country without a patent system who does “better” at innovation, please. Also, please cite an example of the “similar enough but not infringing” case, including the relevant patent number and evidence that the patent was worthless as a result.

    Otherwise you’re just indulging in fundamentalist Libertarian claptrap.

  • “Name me an actual country without a patent system who does “better” at innovation, please”
    I see. Because no one has ever tried freedom, it mustn’t work. The lack of government protection of patents isn’t the reason for the lack of innovation in dictatorships or socialist kleptocracies. It is up to those advocating any government program, imposed by force, to prove its efficacy, taking into account ALL the costs. One way to do that might be to take a country with no patent system, institute a patent system and determine if that system stimulated innovation. But statists prefer to assume their conclusions.

  • Patrick

    Robert’s point about the conceptual problem is a very good one – it also highlights one place where the conservative-libertarians and libertarian-conservatives part ways!

    But Uian mustn’t realise that the point of a trade secret is to remain secret, and thus to the manufacturer’s advantage, not to defeat a subsequent patent claim.

    If you doubt that that entails significant costs, try visiting a high-tech factory like a chip fab or hard disk manufacturer or LCD panel factory.

  • stoatman


    But it has been tried before — albeit a long time ago. And in general it didn’t work (although one exception to this is the dye stuffs industry in the 19th century), with those countries offering patent protection experiencing greater economic and technological growth.

    Why build yourself a house if any old bugger can come and live in it?

  • Dale Amon

    However the patent system was set up in a world where things moved slowly and was not intended to be used the way it is today. Companies write broad patents and write them in such a way as to make sure the important information is obfuscated.

    I have been told by a fairly well known Silicon Valley entrepreneur that lawyers advise that engineers whould *NOT* read patents in any case. If a large company goes after you for infringement, if you can plead ignorance they only get straight damages. If they can prove you had actually read the document, they get triple damages.

    Patents are no longer about disclosure. They are about a strategy for preventing development. Look at the SCO fiascos.

    Patents have become a total farce.

  • Stoatman


    Please don’t confuse the clusterfeck that the US PTO has caused with a properly functioning patent system

  • Let’s get a few things straight.
    I’ve only come up with two or three patented ideas.
    The last one was for a physiologically powered cybernetic implant which would transmit medical information for life at any desired time.
    This was reckoned to be worth £100 million a year to the company which I told about it(while I was working for them).
    They fired me with legal minimum redundancy.
    The ‘law’ of Britain probably supports them, but I can’t afford to find out.
    Now I’m driving a truck.
    And quite happy to continue doing that until I can get to Canada, where Patents mean ‘Property’, not ‘kudos’.
    I don’t want a knighthood.
    I want more life, fucker!