Toward the Anticommons

So, I've found myself back in the world of commercial software after a Linux-induced hiatus of roughly four years--let me tell you, it's a shock.
The US Patent System in Global Perspective

Were I consulting the European Union (EU) on the advisability of following the US lead on software patents, I'd urge them to hold off--which is precisely what they're doing (Lea 2000). If the US system is indeed inimical to innovation over the long run, as Bessen and Maskin's model suggests, Europe could become the next great center of software industry innovation--if, that is, the EU resists US pressure to conform to the PTO's practices.

There are signs aplenty that some of the most significant innovation in the software industry is coming from outside the United States. To cite one example, US software firms have made only diffident efforts to improve software quality, citing the expense, inherently difficulty and irrelevance of producing Space Shuttle-quality software for desktop computers. But don't tell that to someone who's using this software for mission-critical applications. That's one of the reasons customers are turning to software firms in India, which is fast emerging as a world leader in the art of producing software that is virtually flawless. In the US, someone, sooner or later, will get a patent for the methods and processes of implementing a total quality system for software production.

For now, my Win2K system, loaded with software that employs patented or patent-pending algorithms, looks almost as good as my Linux box, but I'd have to say that patent-free Linux has the lead in the area of desktop customization. And I'm wondering what's going to happen to those shareware fees in the future. If software developers have to pay off dozens of patent holders just to create a program capable of playing my MP3s, the fees are sure to go up even higher--at a certain point, it just ain't worth it.


[1] The answer is "Yes, sort of", if you're willing to shell out a couple of hundred bucks to mitigate the deficiencies of the standard Windows interface. My pick of the interface-enhancement utilities is Object Desktop (, which gives Windows users much of the ability to modify the Windows desktop that X users have enjoyed for years.

[2] Under US law, it's an offense to mark an article as patented when it's actually not. The term "Patent Pending" has no official status or legal effect, but it can be legitimately used when a patent application has been filed. For more information, see "Patent Marking and `Patent Pending'" (

[3] Critics of the pharmaceutical industry point out that this system tends to produce expensive "designer drugs" targeted to the maladies of wealthy nations; the pricing structure that results effectively keeps life-saving drugs off the market in most of the Third World.


References and Further Reading

Bessen, James and Eric Maskin. 2000. "Sequential Innovation, Patents, and Imitation". Working Paper, Department of Economics, Massachusetts Institute of Technology. Available on-line at (Adobe Acrobat reader required).

Garinkel, Simson L., Richard Stallman and Mitchell Kapor, 1991. "Why Patents Are Bad for Software", Issues in Science and Technology Fall 1991. Available on-line at

Lea, Graham. 2000. "Software Patents Stay Banned in Europe--For Now", The Register, December 3, 2000. Available on-line at

League for Programming Freedom. 1991. "Against Software Patents". Available on-line at

Lessig, Lawrence. 1999. "The Problem with Patents", The Standard (January 23, 2000). Available on-line at,1151,4296,00.html

O'Rourke, Maureen. 2000. "Toward a Doctrine of Fair Use in Patent Law", Columbia Law Review June 2000.

Rose, Simone A. 1999. "Patent `Monopolyphobia': A Means of Extinguishing the Fountainhead?" Case Western Reserve Law Review, Spring 1999.

Stallman, Richard. 2000. "The Anatomy of a Trival Patent". Available on-line at

Tilton, J. 1971. International Diffusion of Technology: The Case of Semiconductors. Brookings Institution.




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