The latest travesty to be committed by the Einsteins in the US Patent and Trademark Office (USPTO) will be held up, once again, as proof positive that patent law is a capitalist evil.
It is many things, but it is not that.
Microsoft's patent abstract reads: "Systems and/or methods are described that enable a user to elevate his or her rights. In one embodiment, these systems and/or methods present a user interface identifying an account having a right to permit a task in response to the task being prohibited based on a user's current account not having that right."
Let's put aside the great irony that Microsoft's operating systems traditionally have given users full systems administrator rights by default, despite the obvious threat to system security that this implies.
Microsoft did not invent "rights elevators". Bob Coggeshall and Cliff Spencer arguably did. The "sudo" command, designed to give a user elevated privileges on a system, ran on BSD Unix on a DEC VAX system. An updated version was made public on Usenet in 1985. It is available under a free, open source licence.
If you run Linux today, you'll be very familiar with what Microsoft just claimed (and was granted!) as its own invention.
So, what went wrong here?
To all those who want more things to be run by the state, for the benefit of all, surely there is no better example of the consequences than this?
The problem with patents is simple.
The notion of patents in a free-market capitalist system is much evolved from the crude royal monopolies of yore.
Ivo Vegter, contributor, ITWeb
At heart, they are based on the right anyone has to the fruit of their own effort. If you invent something, you can use it or not as you choose. In order to do so, you'll likely have to keep the invention a secret from would-be competitors and copiers.
Such "trade secrets", however, were believed to be inimical to innovation, so benign rulers would enter into an agreement with the inventor: disclose the workings of your invention, so others can license and build on it, and in return, we'll protect your right to it for a set time, so you need not fear losing control over it.
Patents are not a modern invention, nor a capitalist one. They existed among the ancient Greeks 2 500 years ago. The city-states of Renaissance Italy awarded them. English kings have granted monopolies on inventions and trades since the 15th century.
Although "letters of patent" were at the heart of the monopolies of the mercantilist era, they also became a key reason for the rapid development of technology during the Industrial Revolution. Because inventions were "made patent", or disclosed, in return for formal property right recognition, others could rapidly develop them, bring them to market, and advance the state of the art. The notion of patents in a free-market capitalist system is much evolved from the crude royal monopolies of yore.
The problem, however, is that property rights are managed and enforced by the state.
In some countries, title deeds to landed property are a bureaucratic mess. This is often held up by economists like Hernando de Soto to be a key reason why many less-developed countries remain so: citizens without well-protected title in their property cannot use it as collateral to obtain access to capital.
If a robber could lay legal claim to a part of your property, and sell it or lease it out, would you feel secure in your property? If you couldn't prove the extent of your land, or your ability to retain possession of it, would you be able to use it as collateral for a bank loan?
This is exactly what's happening with patents. They are administered by government, but its bureaucrats have proven hopelessly incompetent at evaluating the criteria for granting them.
They do not investigate "prior art", they have no subject-matter expertise, and they don't comprehend the dangers of vague and over-broad language. As a result, the USPTO happily awards patents to applicants for "inventions" that are not innovative, not non-obvious, not useful, or not accurately described. Worse, they often don't even belong to the applicant.
South Africa's patent system is even worse. Here, the government just registers your patent without investigating the claim at all. Merely being patented elsewhere is sufficient grounds to grant it. And if your faith in such a system isn't already weak enough, South Africa adopts a very curious position about both property rights and novelty when it grants patents to arbitrary "owners" for indigenous herbal medicines that have existed for centuries.
In principle, all this stupidity can be fought out in the courts. But why bother having patent examiners if the victims of wrongfully awarded patents have to prove their claims at great expense before a judge?
Thanks to the incompetence of government bureaucrats, the patent system as we know it is broken. However, the alternative to patents is a return to trade secrets and an inability to capitalise on inventions that are stolen or copied. Not only are trade secrets harder to protect (just like property is hard to defend without legal title and police protection), but encouraging trade secrets will surely do more harm than good.
Developing private means of establishing patent rights seems unlikely, since government exists so citizens don't have to defend their own property rights with armed force. If you have an idea on how the free market can provide a better patent system, I'm all ears.
In the mean time, the US - the biggest and most authoritative issuer of patents - can fix its patent office. It can staff it with competent people, able to properly evaluate the criteria against which applications are to be judged. If they don't, it will remain a lawless frontier for the rash and the greedy.
Albert Einstein once worked at the Swiss Patent Office. Now there's an idea the US could build on.