Skip to: Content
Skip to: Site Navigation
Skip to: Search


In a Wikipedia age, should all ideas be free?

The US Supreme Court shouldn't weaken the patent protections that fuel technological progress.

By William F. Shughart II / December 8, 2009

Oxford, Miss.

Would you spend countless hours developing a novel business method if you knew you couldn't protect it with a patent? Most of us wouldn't.

Skip to next paragraph

Yet before the US Supreme Court is a case that could have severe consequences for the incentives that fuel such job-creating innovations.

While a ruling in Bilski and Warsaw v. Kappos isn't expected until next spring, let's hope the court doesn't fall prey to the arguments of Harvard Law School professor Lawrence Lessig and other supporters of the "open source" movement in computer software. They contend that intellectual property rights – which extend 20 years beyond the date a patent is issued – erect barriers to technological progress, discouraging collaboration and slowing economic growth.

Just compensation for hard work

In the Wikipedia age, it may seem that lots of people are happy to work free of charge for the common good. But the reality is that new ideas are scarce and their discoverers, as our Founding Fathers recognized, merit protection from those who seek to gain from their intellect, investments, and hard work without just compensation.

Article I, Section 8, of the Constitution explicitly delegates to Congress authority "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."

Developing and successfully commercializing new products and technologies typically requires large investments of time and treasure. Most research and development (R&D) investments end in failure.

Temporary monopoly is justified

Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea – and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors and the incentive to invest would disappear, stifling the discovery process.

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.

It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.