Brian Dodson
Dec 13, 2011

Patents, society, and the US Constitution

At times, when you have trouble finding something, the answer is right at your feet. As I surf the Web, I find increasing sentiment that the idea of patents is fundamentally faulty from an economic viewpoint. Many of these bloggers base their analysis on what might be called the ‘disclosure myth.’ 


This myth (which I myself was taught, back in the day) holds that a person who is issued a patent on an invention is being rewarded for disclosing how their invention works in sufficient detail that one ‘skilled in the art’ will be able to practice the invention. People adhering to the disclosure myth then urge that the cause of innovation in society is not greatly aided by the disclosures made available in the patent. As a result, the argument goes, society should not so greatly award the inventor in return for a minimal disclosure. In fact, the cost of an inefficient monopoly is generally considered to outweigh the benefits resulting from the disclosure.


I certainly agree that patent disclosures are often minimal to the point of nonexistence. Before venturing into patent law, I spent some 15 years pursuing a very successful career in physics and materials science research. Despite this background, I later found that even patents directly in my active areas of research told me very little I hadn’t already known. I also agree that a monopoly costs society more than the benefits associated with the very minimal disclosures which appear in patents.


However, all economic discussions based on the disclosure myth are invalid, as the disclosure myth misunderstands the nature of the role of patents in society. This myth looks at benefits deriving from the patent after issue, while I contend that the entire justification for government-issued patents is retroactive. That is, that the carrot of the monopoly drives the exploration and innovation that generated the patented invention. What happens afterward is not the point.


Or at least that is what the Founding Fathers thought. The U.S. Constitution, in Article 1, Paragraph 8 states:


‘The Congress shall have Power…to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’


It is interesting to note that the Constitution does not call for formation of a patent system – it only allots Congress the power to establish such a system. Admittedly ‘what is not forbidden is mandatory’…but I digress.


The phrasing is thought-provoking. The goal of a patent system under the Constitution must be to promote progress in science and useful arts. Where this goal is incompatible with economic optimization, then, either promotion of progress wins, or the entire patent system becomes unconstitutional.


However, the real point here is that the Constitution doesn’t say anything about disclosure. It also fails to require that a patent holder be forbidden from extending their monopoly through keeping the essentials of the invention as trade secrets – a practice which violates the entire concept of disclosure.


Rather, it says (paraphrased) ‘reward them for hewing to their ideas and sacrificing part of their life to bring about a new thing under the Sun.’ An inventor is rewarded for dedication, skill, and innovation – disclosure is a very distant entry in the story of the benefits of patents in a society.