Patent Absurdities

by Doc Searls

The last word in the first draft of Thomas Jefferson's most famous sentence was “property”, not “happiness” Perhaps that's because Jefferson always had a problem stretching the meaning of “property” over things that are not material—especially the good ideas we call inventions.

An inventor himself, Jefferson administered the country's first patent law in 1790. Historian David F. Noble says Jefferson and his colleagues applied the law “under very strict standards, and relatively few patents were issued.” Jefferson explained some of his concerns in a letter to Isaac McPherson in 1813. The letter concerned a disputed invention by Oliver Evans, called a “hopper-boy”.

After detailing the debts Mr. Evans' invention owed to past inventors ranging from Archimedes to a Virginia farmer, Jefferson wearily wrote, “The hopper-boy is a useful machine, and so far as I know, original.” Then he launched into a digression that has haunted patent law ever since, and it also described principles of creation that would not see full expression until they produced the Internet nearly two hundred years later:

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.

The moment [an idea] is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Inventions then cannot, in nature, be a subject of property.

Coming early in the Industrial Age, this was not a catchy idea. The truth of it may have been self-evident to Jefferson, but it was lost on nearly everyone else. The material nature of property was beyond dispute. Even Karl Marx, that great enemy of private property, was a devout materialist who made a big deal about who ought to own what.

Now Jefferson's second revolution is underway. While the first one overthrew a colonial government, the second one overthrows an industrial economy. While both sought to create ideal conditions for free expression, the second one does it by creating a whole new world—one based on the principles Jefferson described in his letter to McPherson.

By the terms of these principles, this revolution is not about e-commerce, dot-com startups or money lavished like free cocaine on every zero billion-dollar entrepreneurial impulse that connects with the venture capital syndicate on Sand Hill Road. It's about the kindlings of wealth those venture dollars ignite: ideas which catch and spread across the globe, illuminating everything and darkening nothing—and inventions which put those ideas to work.

This new world, the Internet, is a work of nature—our nature, as social and original beings. It is, without a doubt, the best thing we have ever done for ourselves. It connects across every space that divides us and gives us efficient new ways to meet, talk, teach, learn, gossip, argue, tell stories and do business.

As a natural habitat for business, the Internet is utopia. For proof, just step back twenty years and take a look. The threshold of enterprise is approximately zero. New business concepts catch and spread at the speed of gossip. The average distance from idea to wealth is reduced from decades to months, millionaires are minted by the minute and billionaires by the day. Vast quantities of fresh money are lavished on every credible ambition, with instructions to set bonfires with it in the midst of the marketplace, without collateral and with minimal personal risk. New companies with negligible revenues are valued entirely for their promise without regard for material intrinsics, turning Wall Street into a casino where the house hardly stands a chance (and in fact does not exist).

In the midst of it all, unprecedented sums of work get done.

The great irony here is that this utopia was not built like an empire, or by people who were, in Walt Whitman's words, “consumed with the mania of owning things”. It was built like an Amish barn by hackers who made it because they needed it, and it sure wasn't going to come from the old software industry. The result was a second world—one made with code rather than matter—that embodied and expressed the long-overlooked virtues of the first:

  • No one owns it.

  • Everyone can use it.

  • Anyone can improve it.

These principles are so basic, they undermine all efforts to deny them.

The gears of the old patent system can't get a purchase on this new world, even though the Supreme Court decided in 1998 that software and “business methods” were patentable. It has been amazing to watch the patent stampede that followed this wacky decision. Thousands of patents were filed to stake out claims in empty space. Now that the first of these patents are getting approved, we're starting to see lawsuits. The Amazon and Priceline suits are only the most familiar ones. There will be many more.

There will also be much garment-rending and teeth-gnashing over the “threats” these patents and lawsuits pose to our new “World of Code”. These new patents are patently outrageous, but they are also futile. Nature will take care of business.

Markets are conversations. You have to talk with them. If you try to command and control them the old-fashioned way, they'll get bored and move on. The rules of Darwin still apply: if you want to evolve, you have to adapt or else you die.

Companies that choose to evolve will need to adapt to the gift culture that produced our utopia. “Gift cultures,” Eric Raymond says, “are adaptations not to scarcity but to abundance.... In gift cultures, social status is determined not by what you control but by what you give away.” The italics are his. This gift is ours.

Patent Absurdities
Doc Searls ( is Senior Editor of Linux Journal and co-author of The Cluetrain Manifesto.
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