Thursday, May 21, 2009

A Certain Irony

When the British crown began to consider expanding its territories and commercial reach, it reached out to a population that even today we associate with violence, thievery, and anarchy: pirates. It was cheaper than starting from scratch and building fleets of vessels, raising a navy, then arming and equipping them. The Pirates had perfected their methods against both Spanish and British vessels, and to cut the losses to British commerce, it seemed best to put them under the Crown's employ. The "Privateers" were born, and Pirates were successfully re-branded. They were used to cut into Spanish stakeholdings along important routes of developing trade, as well as to launch raids on strategic ports along those trade routes. They also continued to commit acts of piracy against foreign vessels and to bring home the booty (some of it) to the Crown.

What does this story have to do with Intellectual Property, you might ask?

The Crown employed these privateers in many cases by using a device still used today. The sovereign extended a monopoly to them in exchange for their loyalty and a share of the proceeds from their raids. Piracy was legitimized, institutionalized, and whole swaths of the new world were acquired by something called "Letters Patent." (This is the one used to employ Francis Drake)

It is from these that the modern institution of patent is partly derived. The grant by a sovereign, for a period of time, of exclusive use of a part of the world or its resources. I argue that these devices owe nothing to natural law, but remain choices of sovereigns, and can be altered as we see fit. Patents must serve pragmatic purposes. Now that we have democracies, the sovereign that benefits ought to be the people represented, not isolated individuals or corporations. The purposes of Patent law are best met when it is crafted to encourage the growth of science, the swift movement of scientific and technical knowledge into the public domain, and innovations are rewarded even while scientific inquiry is encouraged. Over-reaching, as in the case of patents on basic scientific truths (like the sequence of a naturally-occurring gene) serves none of the purposes of patent law, and turns the PTO into an anti-democratic sovereign, and the patent holders into pirates.

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