Incentive Granularity and Software Patenting

I would like to address a comment repeatedly seen on my prior post at Prawfsblawg: “Show me an invention that would not have happened for the entire patent term, and maybe then we can discuss whether the patent system does any good.”

I’m not convinced this is the right level of granularity. But first, a couple caveats:

  1. I tend to think the patent term is too long for the speed at which technology develops today, especially computer software. This may not be true for pharmaceuticals, which leads to tension in the system.
  2. Of course we should look at whether individual patents were incentivized by the patent grant. It would be a bad system indeed if we protected everything that would have occurred anyway. Note that I think the “inducement” standard proposed by Duffy & Abramowicz and discussed in my previous post has some real merit.

But even with these two caveats, that’s not the question we should be starting with. The goal of the patent system is to promote progress of the useful arts. That might happen by encouraging investment in start-ups. That might happen by encouraging research & development funding. That might happen by inventions that come earlier than they would have, even if they would have otherwise come within 20 years. That might happen by allowing inventors some breathing room to invest in commercialization and dissemination of the invention. That might even happen by ending duplicative (wasteful) races carried out in secret. And all of these things might create costs, perhaps tremendous costs for some who come later.

To be sure, there is great (and I do mean tons of) study and debate about whether any of these benefits actually materialize and outweigh the costs. The analysis, though, takes place at a higher level than whether each and every invention would have come about within 20 years. That analysis – or something like it – certainly has its place, but not when assessing the system as a whole. And that’s all I have to say about that.