Why we need software patents, part 2 of 3

Summary:Given that we're progressing toward a society that makes its money through products of the mind not of the factory, our economic health depends on incentivizing our best and brightest to innovate, by making innovation a reliable way to accumulate wealth.

To recap, I lost the popular vote in last week's ZDNet Great Debate by a margin reminiscent of a 1970s Soviet election: 89% to 11%. I take consolation in three things: First, at the beginning of the debate it was 90% to 10% against me, so I actually improved my standing. Second, the moderator declared me the winner. Third, in any argument where 89% of people are taking one side, I want to be on the other side.

In the last installment of "Why we need software patents," I explained that the distinction between mechanical inventions and software inventions is nonsensical: that most any software invention could just as easily have been built as hardware, and that innovations like 3D printing only make the distinction less tenable.

Today, I'll make the central argument in favor of patent protection for software: it is necessary to encourage innovation.

The Founders of the United States of America considered protection of intellectual property so fundamental to the new nation of the United States that they wrote it into the Constitution (Article I, Section 8, Clause 8). Not in an amendment to the Constitution, like free speech. It's in the actual document.

Without protection of intellectual property, the Founders knew, there would be no incentive for creators of inventions to "promote the Progress of Science." Their plan, hatched in the 18th Century, was a foundation of the explosion of American creativity and inventiveness of the next two centuries.

Without the profit motive, we'd have had to wait for Al Gore to invent the internet and user interfaces would all look very FORTRAN. True, there's a minority made up of people who will innovate without the motivation provided by the intellectual property laws, like the open source folks who do it either out of altruism and curiosity, or more often in the hopes of getting paid to support the product on an ongoing basis. But, the majority of people who will not innovate without the economic incentive the intellectual property laws provide.

Whatever percentage of innovation that majority group represents -- and I'd argue it's an overwhelming majority -- is how much innovation we'll lose if the current intellectual property laws protecting software were scrapped.

It's certainly an option to trust innovation to the goodness of people's hearts, or to open-source-type business models, but there is no example in history of that working on a society-wide, economy-wide basis. As much of a fan as I am of Linux, I don't for a second think Linux is a good model for governing the world.

Intellectual property is, for the future, the most important form of property. Given that we're progressing toward a society that makes its money through products of the mind not of the factory, our economic health depends on incentivizing our best and brightest to innovate, by making innovation a reliable way to accumulate wealth.

See also:

Topics: Patents

About

Steven Shaw used to be a litigation attorney at Cravath, Swaine &gMoore, a New York law firm, and is now the online community managergfor eGullet.org and the Director of New Media Studies at thegInternational Culinary Center.

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