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Desrochers, “Excludability, Creativity and the Case Against the Patent System”

I’ve been attending the Mises Institute’s Austrian Scholars Conference meetings since the beginning, in the 1990s. I’ve missed a few in recent years, but go whenever I can. I’ve met so many great and interesting people there. One of them is the brilliant Canadian economic geographer Pierre Desrochers, who was recently profiled in this Mises Institute Faculty Spotlight Interview. I just re-read his nice, short article, “Excludability, Creativity and the Case Against the Patent System,” Economic Affairs, vol. 20, no. 3 (September 2000), pp. 14-16. Many libertarians are now coming out against IP1 but Desrochers was an early skeptic. His article, published in 2000, cites my working paper presented at the 2000 ASC, which was later published as Against Intellectual Property in the JLS. Desrochers attended that ASC, if I recall. I also recall the Objectivist George Reisman attending my anti-IP speech and approaching me afterwards, a bit incredulous that I could oppose patent and copyright, and asking me to confirm that I indeed was opposed to these laws. I said yes, and he just nodded, and he just turned around and slowly walked out, a bit stunned.)

Anyway, Desrochers’s piece is a nice, concise criticism of the patent system. (See also his article On the Abuse of Patents as Economic Indicators, Quarterly Journal of Austrian Economics (Winter 1998).)

Some choice quotes:

The previously listed flaws of the patent system are serious enough to make the case for its abolition. An even stronger case can be made, however, when one considers that the patent system rests on a fundamentally flawed view of human creativity.

A misleading view of human creativity

As many psychologists and historians of technology have shown, innovation does not proceed through major breakthroughs by specific individuals, but rather through the collaboration of different people who, through small and cumulative improvements, yield novel and useful artefacts over time.7 All of patent law, on the other hand, is based on the assumption that an invention is a discrete and novel entity that can be assigned to the individual who is determined by the courts to be its legitimate creator. The associations of an invention with other existing or past artefacts are therefore obscured. Despite its philosophical foundation, however, the patent system cannot entirely obscure the true nature of technological change. As already explained, virtually every new patent infringes in some way on other patents. Furthermore, most patented innovations are typically very minor improvements. As F. M. Scherer has noted:‘As the bleary-eyed reviewer of some 15,000 patent abstracts in connection with research … I was struck by how narrowly incremental [adaptive?] most “inventions” are.’8 Even an anonymous author writing in a brochure of the Canadian Intellectual Property Office9 had to admit that 90% of all patented inventions are minor improvements on existing patented devices.

What the incremental view of technological change implies is that the contribution of an individual to a new device is likely to be small. Thus an inventor who comes up with a better mousetrap is building on the previous work of metallurgists, machinists and woodworkers, but also on the contribution of other individuals who previously worked on similar devices (if only by learning what did not work). Granting him a 20-year monopoly from the initial filing date seems somewhat outrageous in this light.

The fact that people solve problems by combining existing things in a new configuration goes a long way towards explaining the persisting recurrence of ‘simultaneous inventions’ throughout history.

See also George Basalla, The Evolution of Technology (Cambridge, 1988), at pp. 57 et seq.:

The Origins of the Discontinuous Argument

Despite evidence to the contrary, there is widespread support for the idea that inventions are the result of revolutionary upheavals in technology brought about by individual geniuses. The sources of this outlook are threefold: the loss or concealment of crucial antecedents; the emergence of the inventor as hero; and the confusion of technological and socioeconomic change.

Given the nature of technology and technological change, inventor and public alike are apt to forget, or at times deliberately suppress, the debt owed to a key antecedent. Whitney’s first gin bore a strong resemblance to the Indian charka, but that likeness was quickly lost as the machine evolved into its modern form. Few realize that important features of the modern automobile’s form, structure, and mode of manufacture were derived from the bicycle, yet the first automobiles were little more than four-wheeled bicycles — Henry Ford called his invention a quadracycle —powered by gasoline engines. …

Antecedent loss or concealment has occurred throughout history; the creation of the myth of the heroic inventor, however, is confined mainly to the past 300 years. Before the eighteenth century, inventors did not routinely gain especial recognition for their contributions. The history of earlier technology is largely an anonymous one with a few prominent names remembered.

Given this amalgamation of technology with national interests and prestige, patriotic pride dictated the writing of chauvinistic histories of inventions that attributed the most important ones to fellow countrymen and passed over the work by individuals in other countries, no matter how talented or influential these inventors might be. A bizarre situation thus developed in which the heroic inventors of one country were scarcely acknowledged in another land. To take a well-known example, the “inventor” of the incandescent electric light bulb is Sir Joseph W. Swan in Britain, Thomas A. Edison in America, and A. N. Lodygin in Russia. Similarly, the Russian assertion that A. S. Popov invented radiotelegraphy is disputed by those in the West who designate Guglielmo Marconi as the inventor. In sum, parochialism limits the acknowledgment of the prior work done by technologists in other countries, focuses attention upon the de novo emergence of inventions from the solitary labors of heroic nationals, and favors a revolutionary approach to technological change.

The patent system is another modern development that has contributed to the support and dissemination of the discontinuous argument. Patents are the legal means by which industrial societies reward and protect technological innovators. In the process of doing so, an invention is uniquely identified with its inventor and its associations with existing artifacts is obscured. All of patent law is based on the assumption that an invention is a discrete, novel entity that can be assigned to the individual who is determined by the courts to be its legitimate creator. Thus, the patent system converts the continuous stream of made things into a series of distinct entities.

In a capitalistic society, the holder of a patent is in a position to use the patent for personal financial advantage. Because money, social status, and ego gratification are all at stake, the contenders in a patent dispute often fight less than fairly to preserve their claim to originality. Samuel F. B. Morse, for example, stoutly and falsely denied that he had ever learned anything crucial to the development of the electric telegraph from physicist Joseph Henry. Eli Whitney, in the midst of securing a patent for his cotton gin, asserted that he had never seen the improved roller gins that had been devised to attempt to clean short staple cotton. (He did not declare, however, that he had never encountered the older charka gins that had undoubtedly influenced him.) Even Thomas A. Edison was not above making dubious claims when he sought recognition for the invention of moving-picture apparatus. Such dissimulations are the result of a system that attempts to impose discontinuity on what is essentially a continuous phenomenon.

In granting a patent the government does more than give its originator an exclusive legal right to exploit it. A patent bestows societal recognition on an inventor and distorts the extent of the debt owed to the past by encouraging the concealment of the network of ties that lead from earlier, related artifacts.

The final source of the revolutionary explanation for technological change is the confusion of technology with its social and economic ramifications, best exemplified by the title Industrial Revolution. In the early nineteenth century, it meant a series of crucial inventions that transformed industry. The revolution was assumed to have occurred first within technology and then spread to industry. This meaning persists in modern usage in phrases such as the “Second Industrial Revolution” and “Third Industrial Revolution,” referring to fundamental changes in industry caused by the introduction of electronics and computers. A second meaning, and one that has a wider currency, defines the Industrial Revolution as a major alteration in society brought about by technology. That is how Friedrich Engels used the term (1845) when he wrote that a revolution had “changed the entire structure of middle-class society” in England.

According to the first definition the technological-industrial change is revolutionary; according to the second it is the social and economic changes that are so. Because in current practice these two definitions have been merged, it is not always clear precisely what has undergone a revolution.

The industrial changes of the late eighteenth and early nineteenth centuries were truly revolutionary in the ways they affected the lives and fortunes of the people of Great Britain. Yet the machines, and the steam engines that powered them, were the outcome of evolutionary changes within technology. Neither marked an abrupt break with the past. The economic and social consequences of these developments, on the other hand, were so far-reaching that they transformed the social order.

Upheavals in the social and economic spheres have all too often been interpreted wrongly to signify revolutionary changes in technology. The establishment of the first industrial society in Britain was a change of such magnitude that it overwhelmed the techno- logical continuity on which it was based and helped to perpetuate the view that technology advances by leaps from one great invention to another.

The confusion between technology and its consequences joined the myths of the heroic inventors, the ideas of material progress, nationalism, and the patent system and furthered the discontinuous explanation of technological change. Only a close study of artifacts can demonstrate the inadequacies of that outlook and the relevance of the continuous argument.

  1. See my The Death Throes of Pro-IP Libertarianism. []
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