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ON THE SOFTWARE PATENTING CONTROVERSY 793

your hand. If it is not, then you can raise and keep […] [who] would not emigrate without legal guaran-
playing instead. tees that their knowledge would be protected.” This
But what if one of the players demanded that you is a different insight into the potential rationale for
just show your poker hand for free? He might argue intellectual property patents but still would seem to
that by showing your hand to others you do not lose provide a mechanism by which society can benefit
any use of the cards that you have in your hand. If from the software patent process. Society benefits by
you accept such an argument, we would love to play the disclosure (which shares knowledge that can be
poker with you. built upon by future inventors), while the inventor
The above example illustrates fairly well the fal- receives the potential of an economic reward (in the
lacy that some of the staunch opponents of software form of a period of monopoly use of his/her inven-
patents commit: They ignore what is called an asym- tion) in return for this disclosure.
metry in information and information trading. A This line of reasoning asserts that software pat-
software patent allows the inventor to benefit mate- enting does protect the interest of the authors and
rially from disclosing the invention in public, and the inventors while providing them with incentives to
general public benefits by learning, for a fee, from disclose the source codes of their programs to the
the disclosure how to make a particular product or public, which is clearly a benefit for the society at
decision. large. The (relatively poor) economic track record
Another economic argument that is often brought of those nations that have not protected intellectual
up by the opponents of software patents is an asser- property would seem to provide supporting evidence
tion that the patents yield little, if any, economic for the proposition that such a balance is of signifi-
benefit for the general public. In particular, it is cant net value to a society.
argued, there is no convincing evidence that software We see this incentive-based approach as consis-
patents spur any substantial innovation or progress tent with the philosophy of government established
in the creation of new software. Some argue that the by the U.S. Constitution — one where the role and
inventors of new software algorithms would invent authority of the government is limited. The govern-
them anyway, whether rewarded with patents or not. ment and the laws were not established in order to
For instance, Gregory Clark has assembled evi- correct or stimulate the behavior of the people but
dence to try to show that institutional means of to protect law-abiding citizens from the occasional
protecting property (including means of protect- asocial elements. Therefore, an approach that gives
ing intellectual property) do not in general spur control of the process to the inventor seems consis-
economic progress (13). Those who make these argu- tent with the principles of the U.S. Constitution. And,
ments generally conclude that these protections were remember, there is always another approach avail-
not in fact effective at stimulating new economic able to the inventor (in the U.S. at least): the trade
progress but conclude that they were effective at sus- secret, wherein the mechanism by which a software
taining and nurturing those innovations that were effect is acheived is not disclosed but then is pro-
already extant. Such an argument would, therefore, tected only to the extent that the inventor takes steps
actually demonstrate the value of software patents. to prevent such disclosure. Note that, in this case,
If you accept these arguments, the value is realized the society does not give the inventor the period of
through such sustainment rather than through the monopoly use but also does not receive the benefit
creation of new innovations, but that is still a value of knowledge-accrual that results from disclosure.
for society. It is a true alternative. And the decision — appropri-
Some economists draw a different distinction, ately, in our view — rests with the inventor and not
asserting that a patent is an incentive to disclose an with the government.
invention rather than an incentive to create it. Clark It is worth noting that there are examples in the
reports that “[t]he establishment of […] patent rights real world that might be deemed to support the
in northern Europe in the sixteenth century arose opposing position: that not allowing software pat-
from the desire of countries to attract foreign artisans ents is conducive to economic benefits to society. For