Pushback on "Fair Use" for Patents
By Arnold Kling
The patent system has not developed such a mechanism [“fair use”]. This is so in part because patents tend to deal more with the physical implementation of ideas rather than their expression. Thus, to practice a patented method or to make a patented device is to exploit the central right granted by patents. Fair use of copyrighted material, on the other hand, does not implicate the central right granted by a copyright — the exclusive use and control of the copyrighted item — as the “fair user” has merely been given limited access to portions of the item.
But, after saying that patents differ from copyrights because the former involve physical implementation, they write,
What he [Kling] neglects is that IP revolves around rewarding people’s intangible ideas…Furthermore, ‘holders of patents with no products’ fits the description of the many start-up companies, in biotechnology for example, that have been the engines of innovation in many industries.
So they say that patents are different because they involve tangible things and then say that the patent system is there to protect intangible ideas. I’m sorry, but you can’t have it both ways.
I’m afraid the intellectual property is a difficult area. I do not find any dogmatic solution satisfactory. If you are strongly in favor of government protection of ideas that get filed with the government (patents, copyrights), then I think you wind up creating a situation where somebody who does 100 percent of the work to implement an idea (including independently coming up with the idea) gets ripped off by somebody who did 1 percent of the work–coming up with the idea and filing a patent.
On the other hand, if you strongly oppose any IP protection, then you allow someone who has spent years working on something in a lab to have his or her work stolen as soon as it bears fruit.
Edison said that invention is one part inspiration and 99 parts perspiration. I think it is important to protect the perspiration. I think that protecting the inspiration ends up leading to perverse results more often than not.