Bruce Perens: Software Patents vs. Free Software

The original letters patent were the orders of a king. These early legal documents were often used to grant special privileges to the kings friends. Many letters patent granted a monopoly in a particular business to one family, forever. Anyone else who went into the same business would have been defying the orders of the king, so off with their heads!

Who was first to Fly?

I say “one of the first” because there is a bit of controversy about who was first to fly, depending on how Clintonian you want to get about the meaning of “flight”.

If simply getting airborne is the criterion, honors have to go to the New Zealand eccentric Richard Pearse, who in 1902 built a giant flying table that enabled him to reach an altitude of several dozen feet and crash into gorse hedges.

If powered flight without a pilot on board qualifies, then credit is due to Charles Parson’s powered glider (1883) and Alexander Mozhaiski’s steam-powered [!] monoplane (1884).

If reaching an altitude of eight inches counts as flying, then put your hands together for Clement Ader, who made the first manned flight in 1890 – also using steam power – and then improved his aircraft so much that it could not get off the ground at all.

If you believe that a qualifying flight has to be sustained and controlled, but you have lenient standards of proof, then you should consider the claims of Gustave Whitehead, who built a plane that modern science shows to be stable and controllable, but neglected to bring a camera or logbook along on his maiden voyage.

If you are very demanding and insist that the plane not only stay in the air under its own power, but land at the same point it took off, to demonstrate full control, then you’ll be wanting to congratulate the Wright brothers. In 1904, they rolled up their sleeves, built an improved version of their flyer, and on October 20 made a circular flight a little less than a mile long. Not even a year later, Orville was able to fly for more than 24 miles, staying airborne for 39 minutes.

.. I believe that the Wright patent story drives home the intellectual bankruptcy of our patent system. The whole point of patents is supposed to be to encourage innovation, reward entrepreneurship, and make sure useful inventions get widely disseminated. But in this case (and in countless others, in other fields), the practical effect of patents turned out to be to hinder innovation – a patent war erupts, and ends up hamstringing truly innovative technologies, all without doing much for the inventors, who weren’t motivated by money in the first place.

It’s illuminating to point out that all three transformative technologies of the twentieth century – aviation, the automobile, and the digital computer – started off in patent battles and required a voluntary suspension of hostilities (a collective decision to ignore patents) before the technology could truly take hold.

.. In 1905, the Wrights were five years ahead of any potential competitor, and posessed a priceless body of practical knowledge. Their trade secrets and accumulated experience alone would have made them the leaders in the field, especially if they had teamed up with Curtiss. Instead, they got to watch heavily government-subsidized programs in Europe take the technical lead in airplane design as American aviation stagnated.