Shouldn’t we as a society open source all patents?

Shouldn’t we as a society open source all patents?

By “open source” I understand you to mean stopping allowing of enforcement of patents against infringers.

It is important to understand that a patent is a time-limited monopoly for an invention granted in recognition of the contribution to the technology of the invention and on condition that there is full disclosure of the invention. Generally speaking, researchers can improve on patented inventions, even during the life of a patent through experimental exceptions to patent infringement.

By not open sourcing patents, at worst, commercial exploitation of inventions built on top of the patented invention are delayed by up to 20 years (and often a lot less than that) at which time, the patent rights come to an end and the invention is free for people to use without infringing the expired patent.

On the flip side, an enforced “open sourcing” of patents could stifle invention because there would be less of an incentive for inventors to spend time and money to devise inventions. Inventions would be picked up and copied by the biggest corporations with the most market dominance, and they would crowd inventors out of the market who would have no recourse against them for doing so. The market would be even more skewed in favour of big corporations than it is now because there would be no legal mechanism available to protect inventors. Also, there would be less disclosure by inventors as to how their inventions work if they decided not to patent them, meaning that other people would find it difficult to replicate and build on the work of the original inventor.

Not much would ultimately change the face of human life if we open sourced patents as a result. In fact, enforced open sourcing of patents could end up stifling invention and innovation.

Mark Warburton About the author

The Intellectual Property Guru. His determination to protect innovation stems from a family legacy in which his grandfather, a genius inventor, had his innovations stolen and patented by someone he trusted, which led to his grandfather dying a pauper on a park bench. Mark is an international award winning lawyer and patent attorney and 3-time published author. His prowess in the court room sees him winning cases that others thought were unwinnable. Mark’s passion for protecting intellectual property shines through in his pro-bono legal mentoring, proactive legal workshops and 1-2-1 work with clients.