Patents as an Invention Impediment

By Glen Wallace

Has the existence of patent protection become more of an impediment to creativity and innovation than an incentive? The impediments that patents create include the writing of the application, the filing costs, researching of infringement possibilities and the defense against infringement charges or prosecution of others infringing on ones own patents. Anyone who has gone through the whole patent creation process knows that the above impediments are considerable. As a result, one wonders how much brain power has either been spent on dealing with the impediments or been discouraged by them. I believe that brain power being spent dealing with patents is brain power being diverted from the constructive activity of inventing and towards the nonconstructive legal activities involved in the patent creation and maintenance process.

It may be claimed that patent protection is necessary in order to justify the expenses inherent in the invention processes that could only be recouped if the invention as intellectual property is protected from being used by competitors. To some extent I think those claims are exaggerated insofar as it is not so easy both for a competitor to learn how to use the new invention and also to cover the costs of the equipment and tools needed to construct the new invention. But if it is very easy to copy the invention then one might wonder why the patent protection is deserved since the ease of copying would tend to indicate a certain degree of obviousness.

But even if we take as a given that in the business world patent protection is needed to justify the invention costs, then perhaps we should forgo relying on the business world for the creation of new inventions to the extent that we as as society currently do. Perhaps we could veer more towards having a government centered invention generation setup. Many of the inventions that we currently take for granted have there origins in the government whether it was originally created for peacetime purposes such as was done for the moonshot operation by NASA or the myriad of inventions created for military purposes. The university system, while it currently does enjoy the income from the many patents it generates, would still presumably be able to continue to create inventions as a function of academic research but not for the purpose of profits but for the purpose that colleges and universities were themselves originally created for; research and education.

I also think there is something singularly enjoyable about the creative process itself that lends itself to motivating individuals to engage in process of creation without the carrot of money being dangled before them. I don't think one of the greatest inventors of all time, Nikola Tesla, was just speaking for himself when he stated about the inventing process: "I do not think there is any thrill that can go through the human heart like that felt by the inventor as he sees some creation of the brain unfolding to success... Such emotions make a man forget food, sleep, friends, love, everything." If what Mr Tesla says is generally true, then it seems all a society would need to do to foster invention would be to provide inventors with the tools and equipment they need to build their creations along with the food, water and shelter they would also need for basic sustenance and then merely let them alone to 'have at it' with their inventions. If we take as a given that society both wants and needs these new inventions then maybe society would also be willing to provide the resources needed to build and foster invention creation centers or cottages. And once the invention is complete to the inventors and societies satisfaction, it would then be released to the community to be freely used by individuals, businesses or other organizations as they see fit.

Imagine what a boon to the creative process it would be if we no longer had to be burdened by the tedium of searching for prior patents to determine if our own invention is infringing on someone else's patent and then if it does incorporate another patent, then having to negotiate an agreement with the other patent holder. Or imagine not having to deal with patent trolls anymore that engage in the practice of sitting on patents just for the sole purpose of extorting money out of alleged infringers even though the trolls never intend to even ever manufacture a product based on those patents they are trying to 'protect.'  I think, from a perspective of an inventor, a world free from patents starts to appear more and more pleasant in terms of both the invention process itself and the ability of any given invention to have a positive impact on the world that it interacts with.