Patent Abolition

John Gruber at Daring Fireball draws attention to an article in the The Atlantic by Jordan Weissmann who reports on a paper from the Federal Reserve by Michele Boldrin and David K. Levine arguing for the abolition of patents.  The authors assert that while weak patent systems may do some good, strong patent systems stifle innovation and serve the interests of the established status quo companies and institutions.

One might note that in the present university IP policy situation, the appeal for present assignments and other “tightening” measures have come from “old guard” institutions when it comes to invention management.  It would appear to be a point in line with the paper’s argument.

The paper sets aside the idea that is at the heart of many descriptions of Bayh-Dole, that the use of the patent system does promote innovation arising from university research:

The related idea that patents somehow improve communication about ideas – a notion key to the “public-private” partnership between governments and private research organization in which the government funds the research and then gives the private organization a monopoly over anything developed in the course of research – is backed neither by theory or evidence.

A lot of the paper is rather coarse in its assessments regarding IP.  The authors double the cost of obtaining a patent.  They miss that open source software depends on their being a copyright that anchors the behaviors of recipients–a point that is essential to both the General Public License and to the Creative Commons licenses, among others.   They seem to think that Apple has had first mover advantage with its recent products, such as the iPhone, as if the iPhone was the very first smartphone and Palm and RIM hadn’t been there already.  Clearly, Apple wasn’t a first mover, and Apple’s advantage has been as a much better mover.   The authors apparently believe that somehow a large patent portfolio can defend a company from patent trolls–which is simply not the case unless it is an argument from the Ravenous Bugblatter Beast of Traal, that if you have patents with which you cannot sue the troll, then they cannot use their patents to sue you.

Despite all this, there is an assertion worth considering:

The vast bulk of patents are not only useless, they don’t represent innovation at all.  They are part of an arms
race. Any successful large company needs a large portfolio of patents to fend off potential lawsuits by rivals and by patent trolls.

This is true in the most trivial sense that inventions are not innovation, and therefore certainly patents on inventions are not innovation.  Innovation is a change in an established order of interest.  Invention is a personal claim that there is a change in what is possible in the established order, but it takes another step–actual practice–to transform invention into innovation.  In this way, it is nonsense to count patents as a proxy for innovation.  Such a count is merely proxy for one assessment of the potential for innovation, and even that might not be so reliable.  More likely, patents come later when they pile up.  Boldrin and Levine say it is because of an “arms race” among big companies.  That may be, in that context.  But it also may be something of a gold rush, an effort to stake a claim so as not to be ignored, or to get a piece before it is snatched up by someone who gains market power too quickly.  In this regard, perhaps patents play a helpful role in regulating the consolidation of market power by fragmenting improvement pathways.  That may be inefficient, but worthwhile.  And of course, such a thing can cause gridlock, or serve monopoly interests.

What Boldrin and Levine are challenging, however, is that the administrative action of obtaining a patent has to do with innovation, and other rationales for obtaining patents dominate company thinking.   University licensing offices should keep this challenge in mind.  Merely getting a patent does not mean one is on the road to innovation, and neither does licensing a patent.  These are not necessarily “progress” toward innovation.   One can only show such a path to innovation *after* innovation has taken place, and even then it is difficult to make the claim that such innovation only happens because of these steps of patenting and licensing–for that one would have to show that no other steps are possible, and that innovation doesn’t happen any other way, and that the overall outcome was not merely the result of forcing a process through the steps of patenting and licensing out of sheer perversity in following a pre-determined bureaucratic pathway.  That is, the use of the patent system can be driven by an institutional self-interest (typically money, but also perhaps just to have authority demonstrated and accepted, or to get credit for being part of a process).   As the authors argue, it is not about innovation at all.  Innovation is merely the pretext for other things that are way more important.

What Boldrin and Levine ascribe as adverse effects to patents, I tend to ascribe to the behavior of patent owners.  That is, the patent itself isn’t the problem–the problem is how we behave around them.  The problem is social, not legal.  The problem is not even business, but something that runs behind business, that turns it toward uses of patents that do not promote progress but rather self-interest.

I know, this looks a lot like the issue with guns–it’s not the guns that go off on a shooting spree all on their own–it’s the owners.   And if there is no hope of reining in the owners, then the recourse is to regulate the guns.  If there is a similarity at all, it might be that patents are in their way a kind of commercial weapon, and like other weapons they can be used for good or ill, and can be used badly or well in the purpose their owners choose to serve.  If one wants to argue that patents have been used for ill, and used badly even despite stated good intentions, I have no quarrel.  It’s clear.  But I am not at all persuaded that patents serve no good purpose or that should all inventions be public domain that we would be better off.  There are other commercial weapons as well, and patents do offer some relief from some of those.

A different voice in this debate is that of Judge Richard Posner.  In a recent blog essay, Judge Posner describes his concern that patent protection “may be excessive.”  Rather than calling for the abolition of patents, Judge Posner suggests we need a review of patent rights:

When patent protection provides an inventor with more insulation from competition than he needed to have an adequate incentive to make the invention, the result is to
increase market prices above efficient levels, causing distortions in the allocation of resources; to engender wasteful patent races—wasteful because of duplication of effort and because unnecessary to induce invention (though the races do increase the pace of invention); to increase the cost of searching the records of the Patent and Trademark Office in order to make sure one isn’t going to be infinging someone’s patent with your invention; to encourage the
filing of defensive patents (because of anticipation that someone else will patent a similar product and accuse you of infringement); and to encourage patent “trolls,” who buy up large numbers of patents for the sole purpose of extracting licensee fees by threat of suit, and if necessary sue, for
infringement.

A “weakening” of patent rights, perhaps, is what is needed.  The idea of weakening directly challenges the idea that stronger protection, greater “title certainty”, and fewer chances to challenge a patent are all necessary to ensure “progress in the useful arts” (the Constitutional mandate for patents) or “utilization of federally supported inventions” (the Bayh-Dole mandate) or even “to make as much money as we can” (the secret university licensing office mandate).   It may well be that a weaker patent environment may be a more favorable one for innovation, competition, and even for rewards to inventors for their work.  A strategically weaker patent environment may provide more opportunities for transactions, a more favorable context in which to do business.

What might be involved in such a weakening?  Perhaps a higher bar to patentability, especially for method patents such as business and software “inventions”.  In the case of software, it seems that the patent office has gone down the wrong road altogether.  Pretty much everything that is being done with software is a matter of expression, not invention.  Even the copyright office treats software source code and object code as identical and both are considered “literary works”–ones performed by machines, just as were player piano rolls a century ago.   The idea of software itself–that’s inventive–using a compiler as an intermediate stage to translate source to object code.  Sure.  But it has to be obvious to use software to do this or that, whether it is checking a calendar over a network or using one click only to purchase things on-line.

The odd thing is that universities more than any other institution in America has the both the opportunity and the mandate to practice weaker forms of patenting, and thereby demonstrate how best to use the patent system to support innovation.  Universities could be highly selective about what they seek to file for patent protection; they could release a great deal into the public domain; they could license exclusively only in special circumstances, and only for limited times, and with broad reservation of rights.  In short, universities could focus on innovation above all else, and where patent tools provided advantages, use them.  Otherwise, toss them.

Is it possible that we could see such practice develop?  Looking around at where things are headed, one might despair, what with the misinformation about Bayh-Dole, the present assignment movement after Stanford v Roche, the expansion of university claims into all aspects of faculty and student scholarship and consulting, and the general refusal to hold public discussions with regard to national policies on innovation.   Again, it would appear that no matter how the legal rules are altered, the real issue is the rationales of the patent owners.  If they don’t change, there’s not a lot one can do–other than throw out patents altogether.  However, all is not lost.

If you have read this far, then it is likely you actually want to see things change, to create a diversity of practice, to explore and try out things responsive to emerging conditions.  One reason these essays are a bit longer than the usual short quipped blog post is that folks who don’t like these views simply cannot make it all the way to the end, and that leaves the readers of these last paragraphs likely with common purpose and a commitment to innovate in the research enterprise.

 

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