patents again

Francois-Rene Rideau Francois-Rene Rideau <>
Thu, 14 Mar 2002 14:36:30 +0100

Dear Cybernethicians,

following a discussion on patents, I added the following postscriptum
to my article on patents:

    One of the official justifications for patents is that patents would
    encourage inventors to publish their techniques instead of keeping
    them secret, so the inventions won't disappear with them. This
    justification is of course completely bogus. If secrecy was a working
    method to ensure an indefinite monopoly on a technique, and the
    monopoly was the prime motivator of inventors, then inventors would
    certainly not publish in exchange of a patent that gave them a
    monopoly for only a few years, when they could have an indefinite
    monopoly! More generally, the patent system is only meaningful when
    reverse-engineering would otherwise allow the invention to be
    universally deployed despite attempts to secrecy. Thus, the technical
    effect of the patent system is always to slow down the spreadth of
    inventions, never to speed it up!

    There remains the problem of secrecy and its enforcement. That's
    precisely what non-disclosure agreements and exclusivity contracts are
    about, and it is very important that companies and individuals be able
    to sign such contracts and be bound by them. The main different
    between contract-based secrecy and "intellectual property" is then
    that a contract only binds contractants. Hence the enforcement costs
    are born by the set of contracting parties (and it is sure that the
    benefits are properly shared among them -- otherwise, they wouldn't
    sign), not by the public that is the victim of this secret. Not only
    is this "owner pays property enforcement" principle an elementary
    principle of justice, it is also an essential principle of
    economically sound law, to prevent negative externalities in
    enforcement costs. Indeed, with intellectual property, the privileged
    parties are the one who receive the benefits of monopoly enforcement,
    whereas everyone else bears the costs: potential customers and
    competitors as well as taxpayers. Thus, the predictable and observable
    effect of intellectual property is that we see a strong lobby of
    privilege holders and rent-seekers that will use the strength of its
    current and expected privilege money to push toward extending ever
    more the privileges and their enforcement costs, way beyond any
    possible positive effects of the monopoly, since get to receive all
    the relatively small but concentrated fruits, while others get to pay
    the huge but very decentralized bill.

[ François-René ÐVB Rideau | Reflection&Cybernethics | ]
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