Patents, Ecology and the First Amendment
The role of patent laws plays in encouraging innovation is the same role as the first amendment plays in encouraging open political discussion and thus change: they make it possible to challenge entrenched and powerful established interests. To see this we have to back up and get a broader perspective
In their excellent book, The Sources of Invention, Jewkes, Sawers and Stillerman examined how inventions come into being and made some recommendations about how western nations can best encourage innovations. Two of the four conclusions the put forth “with confidence” are of particular interest:
- The forces which make for innovation are so numerous and intricate that they are not fully understood….
- Governments, therefore in seeking to encourage innovation should set down as their first aim the avoidance of harm, of inadvertently checking what they are seeking to stimulate.
Even more important Jewkes et al point out in well documented book that independent inventors and small firms are a major, if not the major source of invention.
The Ecology of Innovation
One way to look at invention that is consistent with Jewkes et al and other researchers is that invention occurs in an ecosystem inhabited by different species. The three major species are established companies, academia, and independent and entrepreneurial inventors who start up companies based on their inventions. The first two species advance the conventional wisdom; the third challenges it.
Established Companies: The interest of established companies is to maintain and grow their franchise in the marketplace. They minimize risk and pursue innovations least disrupting to their existing organizations. Their nature is to resist innovation that threatens the existing organizational structure.
Mainframe computer companies, for example, resisted personal computers until their inevitability was beyond question. Their research focused on how to make mainframe computers faster, better and more useful to customers-developments that would not disrupt the existing organization. These companies got involved in minicomputers, timesharing computers and personal computers only when others proved their viability in the marketplace. These technologies challenged the mainframe computer and threatened to disrupt their organizations. These new computer technologies required selling to different customers through different marketing channels; it required a different cost structure with different profit margins; and it threatened take business from the more profitable mainframe computer marketplace. Mainframe computer companies had every incentive not only to not innovate in ways that threatened mainframe computing, but to prevent others from innovating-except, of course, for innovation that advanced mainframe computing.
Established companies require a consensus before they invest in innovation, and before they commit to marketing an innovation as a product. They invest in what committees agree they should invest in. Thus, they only invest in what conventional wisdom says is innovative, and in the interest of the companies.
Academic research: The Federal Government funds over 70 billion dollars a year in establishment science. Whether military, or academic research, committees determine the technologies to fund. While company innovation focuses on what generates lower risk short term profits to the company, and academic innovation focuses on what generates riskier long term benefit for the general welfare, they share something in common. Both are funded by committees which reflect the conventional wisdom. Moreover, both are sophisticated in developing support for their innovations and for advancing their organizational interests. Both have influence and lobbying efforts in Washington. Inventors in these organizations rarely risk their own money; they risk stockholders’ and taxpayers’ money.
The independent and entrepreneurial inventors: It is the third species, independent and entrepreneurial inventors, that is crucial to the ecology of innovation. These are the people who risk their own money and time and future on their inventions and what is most important they are the ones most likely to pursue ideas at that are contrary to the conventional wisdom.
The literature on innovation shows that the independent and entrepreneurial inventors are often mavericks, very often outside the affected industry, and usually the major source of innovation in an industry. Such inventors are unorganized and have no lobbying organization in Washington, let alone influence. They are hard to identify because they usually think of themselves as entrepreneurs or product developers who get patents. They are generally people who get an idea that they think has value to society, work day and night on it, spend their own money on it, get a patent on it, and act to turn the idea into a product in the market. These are the ultimate risktakers, spending tens of thousands of after-tax dollars, and years of time turning their inventions into reality. This species creates most of the fundamentally new ideas. It is at the bottom of the innovation food chain. Big company and academic innovation feeds on it, Whether in technology, public policy, jurisprudence, or any other human activity, conventional wisdom invariably starts out as a challenge to an earlier version of the conventional wisdom.
Independent and entrepreneurial innovators are a vitally important species because they challenge the conventional wisdom and entrenched interests and so produced the most fundamental new ideas. Unfortunately, they are in great danger of becoming an endangered species because they don’t have the power and infrastructure to fight of the attacks of the established interests.
Organizations strive for homeostasis. They act to resist change, especially fundamental change. It disturbs the status quo. Only when change is seen as inevitable do organizations step aboard the bandwagon (and then try to throw everyone else off.)
There is a view that the nature of innovation has changed. That independent inventors of the past did not have a well funded scientific establishments to challenge, and that the Manhattan project showed that establishment science had replaced the independent inventor. The facts belie that. The Wright Brothers challenged the establishment concepts advanced by Samuel Langley’s and well funded by Congress. And the atomic bomb the nuclear reactor were invented by an independent inventor, Leo Szilard, who, for fear of a Nazi victory, pursued his invention to the point of getting Einstein to write his famous letter to Roosevelt which started the Manhattan project. Fundamental inventions come from independent inventors today as they did a century ago for two reasons.
- The nature of people has not changed.
- The nature of organizations has not changed.
If independent inventors are a dying species, it is not because their ecological niche has been filled by big organizations, but because big organizations are destroying that ecological niche. And what we know from ecology is that the death of a key species can lead to the destruction of the whole ecosystem.
What has changed over the last century is that big organizations have gotten bigger and more numerous and have extended their tentacles everywhere to sap the nutrients that would give independent inventors and entrepreneurs the strength to challenge them. In these companies “innovation” and “invention” are usually incremental improvements and advertising puffery.
Any ecosystem has a delicate balance, and the death of a key species can threaten the whole system. And since the independent inventor is a key species in this ecosystem, we must protect its habitat: the patent system.
The First Amendment and innovation
The patent system fulfills the same function as the First Amendment. The First Amendment is not there to let big companies and the government say what it wants to say. These organizations have the power to say what they want to say. The First Amendment is there to protect and encourage those who would challenge the conventional wisdom and powerful organizations. The First Amendment is there to put challenging ideas on a more equal footing so that new ideas can develop according their own merits; rather than be dictated by people in powerful organizations and governments. Our Founding Fathers put the patent system and the First Amendment there so that there will be a fair chance that advancements will be determined by the merits of the issues, rather than by the will of the powerful. The first amendment is there so as to enrich the gene pool of ideas. A civilization, just like a species needs a rich gene pool to survive lest it suffer the fate of the nene, the state bird of Hawaii, which is dying out-not because there are not enough of them, but that their gene pool is too small.
The recognition that the nature of established organizations, inventors that challenge them, and the conditions that allow inventions to flourish is not new. Abraham Lincoln was a strong proponent of patents, technology, and the independent inventor. He was the only U.S. president to be a patentholder. And he is the only one to litigate patent suits. Lincoln acted on his ideas. He did not leave the development of new weapons to the War Department, but spent much of his time talking to independent inventors, evaluating their inventions and fighting the War Department bureaucracy to get those inventions adopted. On his own authority, he ordered the first breechloading rifles, breechloading cannon and machine guns. He successfully lobbied the War Department to introduce ironclad warships, incendiary weapons and aerial reconnaissance. No other president took such an active role in promoting new technology. And no other president so encouraged independent inventors in challenging establishment interests whether of the southern states institution of slavery or the War Department’s ordnance department.
Lincoln’s actions were considered. In a speech on Inventions and Discoveries he identified three major “inventions” that encouraged invention. One was the patent laws; one was the printing press; one was the discovery of America.
Abraham Lincoln explained, “In anciently inhabited countries, the dust of ages—a real downright old fogyism—seems to settle upon, and smother the intellects and energies of man. It is in this view that I have mentioned the discovery of America.” By the “dust of ages” doesn’t Lincoln refer to conventional wisdom and establishment organizations? Aren’t many of the establishment organizations of today like the anciently inhabited countries on which the dust of ages has settled? Are not the independent inventors who challenge established wisdom and established organizations the America to which Lincoln referred? Are not the patent laws that Lincoln said were so important designed to protect and reward those who would challenge established interests?
One of the great American inventions is Constitutional Democracy. It has been copied the world over. The events in Russia today vivify its importance. Constitutional Democracy happened in America, because we could look at the problem afresh without suffering the weight the conventional wisdom-the dust of ages. And two independent inventors took leading roles in its formation: Thomas Jefferson and Benjamin Franklin.
If mankind can benefit from more inventions, their inventors must benefit from their inventions. We must reject a patent system of the multinationals, by the multinationals,and for the multinationals.
Bruce, Robert, Lincoln and the Tools of War, University of Illinois Press, 1989
Bugbee, B.W, The Genesis of American Patent and Copyright Law. Public Affairs Press Wash DC 1967
Jewkes, J., Sawers, D., and Stillerman, R. The Sources of Invention, Second ed.,
Lincoln A. Selected Speeches and Writings, Vintage, 1992.
Root-Bernstein, R. Discovering, Harvard University Press, 1989.
by Paul Heckel