Don't Let Congress Hand Patent Abusers Their Ultimate Wishlist

The examples you mention illustrate the importance of patent rights to securing financing that bankrolls R&D. Bell had investors who pressed him to patent the telephone. Edison’s research was bankrolled by a series of contractual arrangements with companies like Western Union—where patent rights protected technology that he was demonstrating and trying to sell to Western Union. He also sold patent rights to Jay Gould. His Menlo Park R&D lab tested 3,000 lightbulb designs before filing the first patent. The same month as that patent filing, Edison founded what would become General Electric using financing from JP Morgan and others. Although you didn’t mention flight—the famous Wright-Curtis lawsuit actually involved two patent holders. Curtis was bankrolled by, among other people, Bell, and had its own aircraft patents. See here’s for more of the history: https://poseidon01.ssrn.com/delivery.php?ID=4980020990931060...

Patents almost certainly delay the widespread adoption of a new technology. That’s the whole point. But the counter-factual scenario is not, as you suggest, what would have happened had the invention not been patented, but what would have happened if patents had not been available. Would the alternative means that exist to finance R&D (government spending, mostly) have produced the invention in the same time frame?

Also, there is the problematic fact that monopolies are, for a time anyway, good for innovation. Someone else might have invented the telephone. But Bell’s monopoly ended up inventing the transistor, C, and UNIX. Someone else might have invented the copier. But Xerox’s monopoly ended up investing the GUI, email, and networking. GE, IBM, AT&T, Microsoft, Xerox, HP, Google-these are all companies that added way more to the state of the art during their quasi monopoly periods than at inception.

Where can I read more about it?

In either case, it's likely that the USPTO isn't going to notice before issuing the patent, but under first-to-file it is way easier (read: cheaper) to show that "X document was published on Y website on Z date" than it is to start doing discovery to compare private lab notebooks or whatever to decide who really invented the thing first.

This only ever affected a minor number of cases anyway, and the change mostly just made litigation costs cheaper and more predictable.

It also seems really great for open source software (where I personally work), since everyone publishes everything they do immediately anyway.

If you wanted a different rule for software then you'd have to carefully define what is meant by "software" and think carefully about side-effects: would you be discouraging people from releasing source code, for example? Perhaps not worth it.

Then, it will have to compete with the existing ways. If it's worthy of being the new normal, it should be able to compete and win.

I think that means that economic activity on the platform with the sane IP policy would need to be more desirable for both buyers and sellers. It's obvious why sellers would want to avoid using platforms that are either so riddled with bogus IP that they can't operate (like USD), or so bereft of enforcement that they get no credit for originality (like CNY). But an incentive structure that keeps buyers from jumping ship to the latter sort... That's going to take some creativity.

My best shot at it would be this: Supposing the underlying system is a proof of stake system, perhaps your staking rewards could be reduced or increased based on the extent to which your purchasing habits transferred value to platforms that don't support the desired IP features.

So even though you may pay more for the IP compliant product up front, in the long run the system rewards you for not funding its IP-deviant competitor.

The savvy thing for a buyer to do in such a situation would be to have separate identities on each platform, so you spend your no-rules tokens on no-rules products and you spend your regulated tokens on regulated products, thereby avoiding penalties for being a traitor. Hopefully, the market cap of either economy's token would then hinge on which one functioned better independently of the other: May the economy with the best set of policies win (where winning means attracting the participants from its competition).

The trouble is, we don't have infinite resources to just spawn economic petri dishes like this. Eventually the competing economies will come into conflict over more that just which is more fun to participate in. Eventually they'll start wasting resources on fighting over access to some mineral or whatever. I'm still noodling on fixes for that, but even so, I think that such a system would be no worse than the one we have.

To explain this trend I might vaguely gesture toward businesses responding to stresses as the postwar golden economic era ended, except 1) old patents from before the postwar boom (e.g. 1930s) were also useful and to-the-point and 2) academic publications also grew more bullshitty in the same approximate time frame.