In the latest film installment of Ayn Rand’s influential novel, Atlas Shrugged, the government has taken the drastic step of seizing all patents, as well as copyrights, for the public good, under the so-called Fair Share Act. Although the U.S. government has not officially taken such a drastic step, some economists and advisors have recently advocated the abrogation of patent rights for industries involved with software. Indeed, some argue that software patents are deleterious to the public good.
A patent is a bargain or contract with the government designed to foster innovation. The United States’ founders determined that technological advancements should be rewarded, and chose to adopt a patent system as the framework for such social enhancement. The idea is that an inventor would have some incentive not only to conceive of an invention, but also to reduce it to practice — i.e., allow the concept to enter the market instead of keeping the technology secret.
From the earliest Venetian patents of the late 15th Century to today, the patent system has given inventors a mechanism to protect their ideas. Without protections, rampant copying would ensure and inventors would have less ability and incentive to contribute.
Modern technologies are complex, far beyond the technologies of 1790, when the first patent laws were enacted in the U.S. What would the founders think of smartphones and the software engines therein?
Software is not a physical, tangible thing, although it certainly controls physical things. From the earliest beginnings of software in America, inventors have tried to capture the code in a patent. In most cases, this is no trivial task. Crafting a patent claim, the heart of the exclusive right, can be tricky, especially in view of the various Supreme Court cases that have shaped the issue. Continue reading