Patent Law, Copyright and the Public Domain

I was at a friend's birthday party last night and met a patent attorney. We got talking about the parallels between our businesses and scared our wives away with an impassioned conversation about intellectual property.

In the conversation, he explained how as a patent litigator he fights for the rights of companies that make generic drugs. He described experiences with companies that hold drug patents attempting to stifle the competition posed by the introduction of generic drugs. In doing so, he argued, these companies limit innovation and consumer choice.

We talked about how the Constitution provides for the protection of intellectual property. The Founding Fathers intended a system whereby businesses can take advantage of what is essentially a short-term monopoly. They also intended that what benefited from this protection would ultimately lose it. Yet losing this protection and entering the public domain is beneficial as well. Just as the protection creates incentive for investment and innovation, the property’s entering the public domain means it can then be utilized by others in an entirely new cycle of investment and innovation.

The Constitution of the United States, Article 1, Section 8, Clause 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

This cycle is vital in culture as well. Copyright offers similar protection to artists and musicians. The public domain allows for old material to be reused in the creation of new. Our culture grows because of a system that allows for the creation of new art through the recycling of ideas.

Flickr photo by opensourcewayThe attorney described how companies fear losing their patents to the public domain given the perceived risk that the loss might destroy their business. However, we must remember that the cycle of works entering the public domain has its purpose as well.

What stuck with me was his idea that our collective mindset needs to be changed such that losing intellectual property to the public domain becomes seen instead as donating it to the public good.