What we talk about when we talk about patents

Last week's This American Life show on patent trolls did an good job of explaining some of the more vexing problems with the patent system in a way that a disinterested layperson could understand or even find compelling. One of the hard things about being a wonk about intellectual property is that the subject is so full of nuance and history and theory that you can't really form a good soundbite.

Patent trolls are a pretty easy target for scorn. Acquiring as many poorly-defined patents as one can not to produce goods or services but to sue other producers when alleged violations take place is pretty reprehensible even to the most disinterested and makes for a good story.  Even if you have no idea what prior art is you can feel indignant on behalf of the poor programmer who slaves away on his app only to be smacked with a lawsuit at launch because someone else says they invented the idea of icons. But if you want to move beyond complaining about a specific bully to talk about why software patents themselves make no sense, then you have to discuss the history of logic gates and difference engines and virtual machines and what algorithms are and oh god just kill me already.

Ultimately I think that the only way to get a layperson to think critically about patents (and about copyright and trademarks) is to ask what it is we want patents to do, and what it is they're really doing. Because it's not about violators stealing something that belongs to someone else. It's not about property at all. The constitutional basis for patents and copyright is the promotion of science and the arts, and we should judge our system by the question: are we producing more and/or better ideas with the system we have in place? Would we have more and/or better inventions with a different system—or even with none?

(to be continued)