The first written argument in England for a patent was provided by Jacobus Acountius, a citizen of Trent, in 1559 in a petition to Queen Elizabeth:
"Jacobus Acountius to the Queen. Nothing is more honest than that those who, by searching, have found out things useful to the public should have some fruits of their rights and labors as meanwhile they abandon all other modes of gain, are at much expense in experiments and often sustain much loss as has happened to me. I have discovered most useful things, new kinds of wheel machines, and of furnaces for dyers and brewers when known will be used without my consent except there be a penalty and I poor with expenses and labor, shall have no returns. Therefore, I beg a prohibition against using any wheel machines, either for grinding or bruising, or any furnaces like mine without my consent."
This argument, although 445 years old, still provides insight into why we have patents. Examine the argument carefully. What Jacobus Acountius says is that he has invested time, money, and creativity into devising something new. He also implies that his machines are novel because he had to discover them, not obvious because he had to search, and useful.
Is it not right, he states that I should be given protection for my work, because of my investigation? The answer, still found in our patent system, is yes - if you agree to teach others what you have learned. This unique arrangement of exchanging a temporary monopoly on the use of an invention for revealing the concept has stood the test of time and is a valuable ingredient to our economic system.
In antiquity, the patent concept was very broad. It was granted by monarchy to establish rank, precedence, land conveyance, monopoly, and invention. The earliest known monopolies were granted to cooks in about 500 BC in Sybaris, Greece for unique dishes.
The patent concept, as we know it, evolved from this through Greece, Rome, Germany, France, and England. There was much abuse of patents as they were handed out to friends of the ruling monarch even if they did not do the work on the invention. Patent law precedents for the current system were most influenced by Queen Elizabeth in England.
Article I, Section 8, of the Constitution of the United States, includes this statement:
"The Congress shall have Power...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."
A "patent" protects an "invention." Every year there are more than 100,000 people who have ideas that they feel should be rewarded with a patent. That is where the patent system plays a vital role in today's economy. As Dr. Chester Carlson (the inventor of xerography) said:
"It takes patience to stay with an idea. In my case, I am sure I would not have done so if it were not for the hope of eventual reward."
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Patents, copyrights, trademarks and trade secrets are all essential ingredients in our economy. The idea of an innovation commons flies against tradition and expectations. To expect someone or the organization that person represents to contribute intellectual property without being able to secure that as property through patents, trademarks and copyrights or to hold it as a trade secret, is difficult. The concept that my organization or I will benefit more from the synergy that results from an innovation commons, that my individual contribution seems almost un-American. For once something is in the commons, it can't be protected.
Clearly there are concerns related to an innovation commons where intellectual property issues exist. How do we overcome those concerns?
I see at least four different types of commons:
- Open. In a sense science commons and the Internet are open innovation commons
Organizational. All the participants are within an organization or team.
- Membership. We are a membership commons. Anyone can join who will contribute.
- Cooperative. In a cooperative commons, there are legal structures to control and protect intellectual property. (Like Mike Warren's Co-Innovation posting).