There have been several discussions propagating open source software and its benefits, and in this fashion, downplaying software patents and its necessity. Using this theory as a foundation, many promote the hypothesis of an open source market or free economy. This sort of discussion has questioned the need for a patenting system in such an economy.
The truth of the matter is that the patenting system was created not only to give the original inventor his due rights to the use of his creation but to establish a system in the field of intellectual property where an individual or a group of individuals could own intangible property and the creations of their mind. This ownership of property must not be taken lightly and the propagators of the free economy must soon come to realize that purging another’s right to own and use their property is nothing but blatant disruption of the economy as we know it.
From the very beginning of the creation of patent law, in 1791, the French law stated that “All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years”. The rationale behind creating patent law was to give the inventor property in his discovery. Today, propagators of an open source market advocate against the patenting system arguing that benefit to society should be the focus of all innovation. What they and many others fail to understand is that benefit to society was always the focus of innovation under patent law. Patenting law only seeks to encourage inventors to innovate by giving them monopoly for a limited period of time. In fact, society benefits a great deal further as more inventors are confident to innovate knowing that they can enjoy ownership for a period of time and not fear that their hard work will automatically fall within the public domain.
The position of most inventors is to create new and useful inventions. Nevertheless, the suggestion that after several years of hard work and large amounts of investment, the inventor would not possess ownership rights of his invention and obtain a return on his investment, even for a limited period of time, will not encourage him to innovate further. This can only be detrimental to society as opposed to beneficial.
Another issue that such propagators fail to explain is with the millions of intellectuals contributing to an invention, which of them is to be held liable in the event of an error. Safety becomes an issue that is undervalued in this version of thought. The idea that a prototype would be released to the public to modify and use to their requirements, does not give the ordinary consumer any guarantee as to the efficiency of the product. If all new products were created in a similar way, what benefit would that be to society?
Some may advocate that this new portrayal of innovation is inevitable with the changing times but in such a case, the entire system of law will need to be revamped in order to adapt to this change. Consider the millions of inventors and companies that will directly be affected by the new system and the billions of dollars lost. But more importantly, consider the impact on the economy when billion dollar research companies are unable to patent their inventions or when government patent office all over the world loose billions in application filing fees. The world as we know it will be drastically changed and it may very well not be for the betterment of society.