Business Method Patents and the Net

“Although we have always had a vibrant patent system, we’ve managed to strike a balance between the need to encourage innovation and the need to foster competition.  As Benjamin Day [founder of the New York Sun], Henry Ford, and Sam Walton might attest, American corporations have thrived on innovative ideas and new business methods, without owning them, for two centuries.  In the past decade, the balance has been upset.  The scope of patents has been expanded, copyrights have been extended, trademarks have been subjected to bizarre interpretations.”  So says James Surowiecki in The New Yorker’s July 14 – 21, 2003 edition.

It’s a spin on the meme that cyberlaw profs all hate copyright (which, of course, is an overstatement).  Most cyberlaw profs think business methods patents have gone too far, just as Mr. Surowiecki appears to, in his New Yorker piece.  In fact, he quotes Prof. James Boyle, one of the best in the business, as saying, “‘Under this logic, one could get a patent on the idea of fast food — not a different way to broil the burger but the idea of fast food itself.'”  True enough.  The real frontier, though, is not in the fast food business, but on the Internet.

Many people who study cyberlaw for a living often see two things happening at once: 1) the extension of monopolies on forms of expression, and indeed monopoly over use of ideas while 2) the Net promises increasingly good opportunities for making great things happen by sharing and building upon the expressions — and ideas — of others.  Consider that promise not just in the developed world, in which the Net has already proliferated, but also the developing world, which is, by and large, yet unnetworked but working hard on it.  I don’t think that most cyberlaw scholars would abandon protections for copyrighted materials or patentable inventions (or trademarks, though that’s a different kettle of fish), but rather seek restoration of a better balance than we have today — and greater chance that more of the promise of the Net can be realized.