The Wrong Kind of Creativity

Regular readers might recall my software patent of the week for September 2, which covers the concept of controlling music playback on a computer screen. Now, via TechDirt, comes news that the lawyers responsible for that shakedown has put out a press release bragging about his accomplishment. And it really illustrates what’s wrong with our patent system:

Starkweather wrote the patent in 1996 for David Contois of Contois Music Technology. The concept consisted of a desktop computer holding multiple songs with an interface allowing a user to select three songs and play them on an electric grand piano. Starkweather saw the broader value and broke the patent into three elements: remote music storage, selection of music to download, and playing music on a music device.

Starkweather realised that downloading movies was an obvious variation to downloading music. It was data manipulated in the same way. “Sometimes it’s easy to break an invention down to its key components,” Starkweather says. “That’s why patent writing is an art, not a science, and requires creativity.”

There are a couple of interesting lessons from this. First, it’s obvious that this patent did nothing to advance the progress of science and the useful arts. The inventor had already created his invention when Starkweather came along, and had no expectation of getting a patent for it.

Second, this should make it clear that patents do create incentives for creativity. It’s just not the kind of creativity that the patent system is supposed to encourage. The real innovator here was Starkweather, who managed to get a patent that’s much broader than was merited by the actual invention, not Contois. Economists call this kind of creativity “rent seeking”–gaming the political system to extract wealth from others. Starkweather is in the same category as lobbyists and ambulence-chasing trial lawyers.

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