Patents and Parthenogenesis
| Gabriel |
Yglesias has a good post on Samsung but he kind of buried the lede with this passage:
A second reason [that supporting incumbents through patents is problematic] is that we may not be able to recombine ideas. What if pinch-to-zoom (iPhone) is a good idea, but so are Android-style widgets that display live information? Well if nobody can copy each other’s ideas, then nobody will ever be able to buy a phone that has them both.
That was interesting to me because it’s exactly the same argument that biologists give as to why sexual reproduction is important at the macro level (the explanations at the micro level are different and mostly have to do with avoiding a monoculture for parasites). This is literally the textbook explanation, as seen in this passage from Futuyama’s Evolution 2nd ed “Recombination breaks down linkage disequilibrium, so that combinations of deleterious alleles on the one hand, and of advantageous alleles on the other, arise and thus increase the variance in fitness, so that selection can increase fitness more effectively” (p. 391). In plain English, Futuyama is saying that with asexual reproduction advantageous mutations have to occur in the same lineage whereas with sexual reproduction they can occur in different lineages then combine through sex. Over the course of a few generations this radically increases the odds of getting more fit organisms. Another way to think of it is to imagine how much easier it would be to build a winning poker hand if you could pair up with another player, xerox their cards, and build several hands out of the copies. It is noteworthy that asexual lineages tend to be very recent lineages descended from sexual lineages which in turn suggests that over the long-run asexual lineages tend to go extinct at much higher rates than sexual lineages.
Patents are actually even worse than asexual reproduction since unlike US patent law, nature allows for the (unlikely) possibility of “independent invention” in two distinct asexual lineages. Let’s put that aside though and assume that patents are no worse for technical innovation than parthenogenesis is for biological innovation — it’s still pretty bad. That nature is dominated by organisms that recombined advantageous traits from independent lineages and that parthenogenetic lineages are so prone to extinction is at least suggestive that we want an intellectual property regime that facilitates borrowing through relatively short patent/copyright terms, narrow patents, and a more robust (and low transaction cost) fair use doctrine to facilitate “derived works.” As is though, we are letting our IP regime drift its way towards the amoeba.
[Update: My colleague Bill Roy observed that my argument assumes a lack of patent licensing. This is true, but it may or may not matter depending on how efficiently licensing works. It is obviously true that patent licensing does not follow perfect Coasean bargaining but equally obvious that there is some licensing. I tend to be a skeptic of the power of licensing to implement anything like perfect Coasean bargaining for three reasons: lack of indexability, transaction costs to negotiations, and prisoner’s dilemma among licensors. However it is worth noting that the recombination issue loses its power to the extent that we assume a relatively efficient licensing regime.]
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