Patents are bad, let’s consider some changes for the better. In particular, the bottom half of this comment lists some reasons to avoid software patents as well as ways we might change the system to make incentives less harmful to society. Also, let’s contrast today with the time when Article I, Section 8 of the Constitution was written.

Large companies gain from patents (even amid trolls) because collectively they can own the market amongst each other. With software, it is particular important to them to stop open source being used by a great many people against them. Open source lowers the bar to competition significantly and pressures profit margins also significantly. Hence, as a weapon against such competitors, patents help a lot even with loses to trolls. [This would be the case at least if trolls remain small in number.]

As for the cost trolls exact on large companies, as was mentioned in other comments above, trolling is a tough costly process, so many don’t go through with it.

>> The reason the founding fathers put the provisions for our system in the US Constitution for protection of innovative rights? Small inventors with TRUE, VALUABLE inventions had routinely been savaged by wealthier people!

The wealthy always have advantages. They tend to have strong levers and don’t like to put their money at risk or keep it idle while others eat into it. Today, they are using patents against the small product-producing inventors (and want to outlaw the trolls).

Patents that harm few people in practice is one thing. Patents that hand-cuff a whole shipload is another. Patents that can greatly stall progress and abridge individual rights for a very long time relative to the speed that industry could otherwise move is even worse.

Translated this means that with today’s higher level of education; low bar to entry in software (cheap powerful computers, $0 to copy/borrow, retool, and distribute as software products are information and not beholden to laws of physics as are what they represent/virtualize); terrific collaborative possibilities (cheap accessible Internet and tools); and high rate of growth and innovation possible, long patent monopolies in software in today’s world have a much higher cost than would a traditional patent two centuries back in a typical field of endeavor then.

Let’s consider a series of questions about the effects of our evolving patent system (focusing on software today vs. other patents back in the late 1700s).

20 year monopolies are even worse today.

Was that patented invention back then likely to be reinvented within 20 years? If there were few inventors, then likely yes but not nearly as quickly as would be the case if there were a lot of inventors (as is the case for software today).

Greater stifling occurs today.

Were a lot of creators likely to be hand-cuffed? As a result of (a) the level of education and opportunities that exist today and (b) the low entry bar to software, the more participants that exist and the more collaboration that is otherwise possible, the more people are likely to be hand-cuffed. Today, with software, we don’t have the situation as we would with most patents granted two centuries back; many more are hand-cuffed with software today vs back then.

Society will lose out today on very large possible savings.

Would society back then have risked having patents remove access to a very large amount of powerful consumer products and business tools at $0 (as would be the case today when FOSS is killed in favor of a patented monopoly high cost product)? No, back then neither software nor anything at all like it existed, at least not of the things that were being patented: eg, business methods, fiction, and mathematics were not being patented. Software patents that are used to hurt FOSS would carry a very high cost to society by removing lots of very inexpensive access, perhaps very high relative to any potential loss possible by a patent taken out two centuries back.

Is a monopoly subsidy efficient?

Is it efficient to allow a single person to try and build a business from scratch that otherwise might not be possible, rather than allow existing infrastructure and established know-how be utilized? No. We want to reward the inventors but not stall progress. This applies as much then as it does now.

Lower the duration of any granted monopolies so as to limit damages and unfairness (limit case being 0 years).

We should keep in mind that few can copy that quickly, especially with copyright protections in place, unless they already were sniffing in the same area or had prior made significant advances. It makes no sense perhaps 99% of the time or higher to give anything exclusive for a long 20 years to one over all others. That 20 should be a much smaller number.

Could we have done better then (as we could now) with some other incentive besides a monopoly subsidy?

Well, a monopoly encourages sloth, horrible pricing, and suboptimal implementations (through lack of competition and copying/leverage/collaboration). If patents are easy to get on non-revolutionary things and/or are too broad, then we acquire all of these liabilities (sloth, high price, low quality, etc) for very very little gain (slightly speeding up introduction of invention concept).

Renewable Tax Credits as a less damaging and more incentivizing alternative to monopolies. Renewable tax credits are not disruptive of progress and individual rights. These could be renewed if certain conditions were met, eg, conditions which might discourage you sitting on your hiney. This sort of incentive would solve the troll problem in avoiding the powerful patent monopoly grants.

Let’s consider renewable tax credits on R&D for being the inventor of record. These would give you an edge over other inventors that were slower. This would motivate you to speed up discovery/inventing. This would help you if you lose out on first mover advantages to more efficient rivals or if you prefer to focus on R&D. [See below, prizes and mandatory royalties as way to augment this, at least in some cases.]

Renewable Tax Credits for Taking a Product to Market After Inventing would benefit you if you can come up with a decent product, even if others copy (or you copy them). This means you are motivated to carry the invention over into a product society will want. These renewable tax credits give you an edge to help make up larger competitors that you beat to the invention punch. Since in a market with many competitors and with many fast evolving products (eg, software) everyone else will collectively out innovate you, you really gain from copying them more than any single competitor gains from copying you. Here you also benefit if you lose first mover advantages. Renewable tax credits might be conditioned on you not sitting on your hiney.

Renewable tax credits to the “first” is not such a lopsided way to reward one group over everyone else.

We can add other tools besides renewable tax credits; however, note that in the late 1700s nothing of this level of sophistication was available! The Constitution provided a backstop instead of good law at that point in time, but at least the backstop was there if in fact *progress would be promoted*. Over time, presumably we would come up with good law that would not stifle or carve out markets for 20 years out as is the case with patents (a bad law) today. The key according to the Constitution has always been not to grant monopolies if progress would not be promoted.

Prizes?

Prizes are one way to reward inventors. The government could create an Inventor’s Aid Tax and use it to pay those that would get something along the lines of a Nobel Prize. Private industry would manage this. The government would give various such judging organizations grants to use for this purpose. These organizations would incorporate under a new section or otherwise simply apply for this privilege (for the conditioned grant money). Note that in our current patent system such an Inventor’s Aid Tax effectively already exists.

If we really want to give a monopoly to “the little inventor”, as some claim is the motivation behind the Article I, Section 8 inventors’ subsidy clause, then pass patent laws to prevent the large from attacking smaller foes. Have safe harbor for things like open source since this adds much to society and patents against it would hurt society. In short, we can prevent certain abuses by trying to code them into the law. This would help were the existing law not otherwise to change much from its current broken state.

Mandatory royalties in sliding scale?

We might instead consider a sort of sliding scale royalty system for a small number of years starting with the year of the first product that makes it to market. This is not too unlike the situation where the patent owner waits years until the market develops and then sues for 6 years of past “damages” plus future years. A difference is that the industry is not encouraged to wait for the 20 years to pass but is encouraged to begin marketing a produce immediately even if for little or no profit. Also, we can assume here we are still avoiding the injunctive powers of patents. The royalty, if applicable, would be on profits (if any) of competitors (details to be worked out later for various scenarios). This would actually be a cap (meaning it could be waived or lowered on a per competitor basis). We could even have the royalty cap amount go down after every year. The royalty values would be determined based on the total number of patents available that might apply to a product. Those seeking royalties would register or advertize as this would affect those that come after. Groups like the USPTO could help here in valuing or judging applicable patents and perhaps in assigning royalty grades/ranges.

Implicit and no fee patents (like copyrights) would be a last resort so that poor industrious software developers are not abused by the wealthy.

If we keep things roughly as they are (ie, a monopoly subsidy) and continue to stifle, then at least make patents be implicit (automatic) and $0, as is the case for copyright. Patent stifling should be accessible to all inventors equally, whether they are starting off rich and lazy or are poor and industriously spend their time working on product details. This way the little guy and FOSS are not completely abused by the wealthy, where the innovations by the former are leveraged by the latter without hesitation but the latter can decimate the former’s creations (sw is complex and would violate lots of patents) or at least stagnate them by patenting in front of the FOSS products. If patents can be used against FOSS, then there needs to be a practical tool for FOSS to have its own innovations be recognized in a manner that is as real and useful as are patents: make patents be implicit and $0.

We might also consider maintaining an official database of inventions which would be organized (eg, by dates) by the private sector and organized as necessary (“lazy evaluation”) rather than as a delay before every patent was granted. This scales since the USPTO is relieved of the task of research to determine priority and scope. The USPTO could then serve to help referee or as low cost expert witnesses. [They could do other tasks as well if some of the above suggestions are implemented.]

Such a database of invention could be used with patent monopolies or instead with some of the above suggestions. The database could be used as people file for inventor tax credit or simply to help support the system. There might be other benefits for registering.

In the spirit of public disclosure (another alleged reason for supporting patent monopolies), revealing all source code to software (or full reproducible blueprints? to products) could lead to another type of tax credit.

In any of these cases, we can still have safe harbor provisions and other special exemptions or rules.

Anyway, to avoid stifling and abridging rights, we simply should not allow software patents to exist. We may or may not utilize the prize/credit or similar examples mentioned above. We could allow some degree of patent monopolies but they should be short and few granted per year, eg, with an upper bound per year and judged by a panel of experts representative of academia and various industries.