by Dennis Crouch
One reason that patents remain a popular government program is that the system does not require any collection of taxes from the populace. Rather, the government gives away property rights to individuals (or their corporate assignees) who prove themselves worthy by disclosing a new and useful invention and who pay fees to run the system. The patent-give-away is different than the land-giveaway associated with American Westward Expansion (often known as “Land Patents”). Although the American West (and Midwest) is vast, it eventually proved finite. And, the space was already occupied by humans who were violently displaced.
Despite the oft quoted statements of Commissioner Duell, the patent space is not showing any signs of being limited in the conceivable future. And, because a patent must be directed to a new invention, the rights only cover fields not previously occupied at the time of patent filing.
As a non-finite resource, we might also think of granting patents as akin to printing money — something that we know can create macroeconomic challenges. But with patents, the government is not printing a commodity like money. What we’re printing is an analogue of private property rights in the form of a right to exclude. Each is different and unique, like a plot of land.
Agree or Disagree: The US Government uses patents to pay for innovation?
(Attribution: question derived from @brianlfrye's work).
— Dennis Crouch (@patentlyo) March 22, 2021
The right to exclude brings us back to the land patent analogy. Here, is where those who complain about invention patents have some meat to chew on. While land rights are limited to the physical bounds of space, a patent right pervades all corners of the country with a silent enforceable covenant to limit actions of the rest-of-the-people. Even if I own the raw materials and embody the skill to work those materials, I cannot legally combine those in ways that fit the definition of another’s exclusive patent rights (without license). This exclusivity is tempered by the 20-year timeline (unlike land patents that last throughout time), which many of us feel is enough to justify the exclusive rights in exchange for the social benefits of the invention and disclosure. Of course, in recent years patents have become more akin to paper dragons that may look dangerous but are regularly defanged by the Courts and the PTAB. In the end, these analogies all fail, but perhaps they help take us a step further in understanding.
Imagine a world where patent rights last forever rather than being limited to 20 years. What if we extended them to inventor's life+70 years?
— Dennis Crouch (@patentlyo) March 23, 2021