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Comment by riskable | Hacker News Reader

Patents were never about "encouraging innovation". Originally they were a money-making scheme for the Crown and quickly evolved into a pay-to-play scheme whereby patents were granted on things like salt (See: https://en.wikipedia.org/wiki/History_of_patent_law).

Eventually they evolved into what we now know as "intellectual property law" in the 18th century and that system was all about disclosure. It had nothing to do with "encouraging innovation". What's most interesting is that even back then patents were being abused and hindering innovation. See the info in that Wikipedia article about Boulton & Watt preventing improvements to the steam engine.

The simple truth is that patents are not required for innovation and they were never intended to protect individual inventors; they were designed to protect business interests. To allow established players to keep the up-and-comings out of their markets.

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> Patents were never about "encouraging innovation".

The US Constitution disagrees:

  Article I, Section 8, Clause 8 [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This is why I've heard the argument (presumably from Stephan Kinsella, who wrote a book against intellectual property) that the patent system is unconstitutional - it is dubious that patents "promote the progress of science and useful arts."

The economist Fritz Machlup did a study in the 1950s on the economics of the patent system in the US and in his conclusion came to: "If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one."

That is a dubious argument in its own right. Inventors undertake the considerable effort of inventing and then pay the expense of filing a patent application while disclosing their invention to the public for the reward of a limited monopoly which they would then have to defend in court, again at their expense. Your argument says they are not motivated To promote the progress of science and useful arts but they seem pretty motivated to me.

I haven't read this literature in awhile but there was a time when I was looking into it and it seemed that there was empirical evidence that if you really want to promote innovation via governmental means the way to do it is through competitions, basically like grant applications or xprize-type things.

The benefits from a patent-type system have to be compared to the alternative, which is where people innovate solely to stay ahead of market competitors and protect trade secrets. In that scenario, one might argue that there's a natural measure of innovation, the ease and speed with which a competitor can copy something or implement a competing product.

I'm not inherently opposed to patents but I do think their implementation today is extremely dysfunctional.

A couple of edits:

> all about disclosure

was post-hoc justified using disclosure.

> It had nothing to do with "encouraging innovation"

Technically disclosure is supposed to encourage innovation by allowing people to see what's up and then either choose to iterate on it (and wait till expiry to deploy the iteration) or "find a better way", either inspired by disclosed patent, or knowing that you have to skirt the bounds of the disclosed patent.

Open question about whether that actually works (I personally think the answer is no).

Technically disclosure is supposed to encourage innovation by allowing people to see what's up and then [..] "find a better way"

Except that if you acknowledge the existence of the patent (for example in an internal paper trail), you will then be found liable for willful infringement and will face triple damages, even if you honestly believe you found a way to avoid using the method covered by the patent.

At least that's the legal advice I've seen coming from the USA:

- never talk to cops

- never read a patent

- never read proprietary source code

  - never talk to cops

  - never read a patent

  - never read proprietary source code

I need a nice printable version of this to post on my wall.

Yep, definitely. To say the implementation has corrupted the intent of the patent system is an understatement

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