The news outlets, radio waves, and blogosphere  and  continue to buzz with responses to the FORTUNE magazine article where Microsoft claims that many popular Open Source software packages, including the Linux kernel, infringe some 235 patents they own and control. Most of this buzz has shifted from questions about the integrity (and/or viability) of Open Source to deeper questions and concerns about Microsoft, but I think there is a still deeper question to discuss. Namely, has the genius of the US Constitution somehow been perverted by the interpretation or the implementation of Article I, Section 8?
The genius of the US Constitution to which I refer is drawn from the context in which the Constitution was written. The framers of that document were well aware of the fact that singular power was singularly corrupting. The US Constitution did not merely transfer power from an inherited seat (the King’s) to one which could be contested through ballots and elections, but it also placed each branch of government as a check and balance against the powers of the other. The framers chose competition, for office and while in office, as the fundamental force that would keep the corrupting influenences of power at bay and keep the fundamental interests of the people always at the fore.
In a similar fashion, competition was (and is) understood to be the key factor that protects the public interest in a free market. When a market is not free, either because of government interference (regulation, tariff, etc) or industry interference (monopoly, lock-out, etc) the public suffers higher prices, limited selection, disasterous quality, or all of the above. It has long been argued, and I agree, that free markets and democratic freedoms really do go hand in hand as they are both expressions of the benefits of competition. Which brings us back to Article I Section 8 of the Teleflex v. KSR which addresses the quality of patents. Certainly dealing with fewer bogus patents is better than dealing with more and more. But we need to look beyond the specific quality of the patent and to the question of the purpose of the patent. The Open Source community has demonstrated its ability to innovate free and clear of any patent protection whatsoever (consider the World Wide Web as just one such example). If there is a surplus of willing innovators and innovation capital, should we maintain a system that threatens to reallocate and concentrate that surplus to a single company who can then control the rate of innovation in later years? The history of Watt’s patent on the Steam Engine provides a textbook example of why we should not! As does Selden’s patent on the automobile and the Wright’s patent on controlled flight, to name a few.
We should look at the patent system as a way to promote innovation, to encourage development where no alternative exists. And we should strongly limit the use and enforcement of patents when there is reasonable evidence that “it’s going to be invented anyway” or “it can be invented the moment the need is perceived”. Such patents are far more anti-competitive than pro-competitive, and a good reason to let them become historical, not current practice.