Let's face it: patents are governmentally-sponsored monopolies. So are copyrights and trademarks. I argue that patents are a far larger governmental interference with the free market than copyrights, because there is less of an infrastructure devoted to copyright. Your copyright is instituted by your authorship, and helped a bit by affixing the little copyright symbol. Your copyright is enforced in the courts, rather than through a government bureaucracy. If we had truly free markets, then products would survive by virtue of their relevance to consumers, and consumers' trust in your brand, and their willingness to pay you for what they think the product is worth. Can we conceive of such a marketplace? Indeed. Without the anti-free market devices of corporations, patents, and arcane and expensive bureaucracies and institutions, useful new products would have to prove their value without the crutch of artificially-created monopoly status, and prices would reflect actual values. All of this seems elementary, and economies existed and flourished long before governments became so entangled with corporate interests. Imagine the flood of new innovation that might enter the marketplace without the threat of large, corporate monopolists threatening lawsuits based on questionable patents.
In many ways, there is now a shadow economy that is waging courageous battle with the monopolists. In this week's The Economist (which I diligently read cover to cover each week), they declare the battle over. Open source has won. This is more or less true. Much of the backbone of the interwebz runs on Apache servers, and Sun bought Open Office, and Google is running on mostly open source software, etc., etc.. And somehow, the infrastructure of the internet is benefitting, and companies still make profits, and the products get better more rapidly, and science marches forward. This is because a truly free market, one that involves consumers and producers in a virtuous cycle, works better than providing advantages to corporations through unnatural monopolies. The latter course is inefficient.
Scientists too realize the benefits of keeping some things in the public domain. Some early responses to the potential that some would grab claims to genes included concerted scientific and corporate cooperation to maintain a commons in basic science. People often ask me how we can fight the monopolist impulse, and reclaim our genome. The good news is, there are many who are trying. The ACLU suit is one avenue. But scientists, and those who support open source and open science realize the true value of not just free markets, but openness as a commodity, as a source of value, and as a value in itself.