What Good Are Patents?

Over the last 60 years, dozens of studies on patenting, innovation and economic growth have found that patents foster ex ante innovation — meaning, they induce people to invent because of the prospect of reward. This causal relationship is widely accepted, and some studies have also shown upticks in metrics like foreign direct investment following implementation of strong patent laws.

The patent system is also one of the most effective tools for knowledge-sharing and technology transfer ever devised. A 2006 study by French economists Francois Leveque and Yann Meniere found that 88 percent of U.S., European, and Japanese businesses were reliant on the information disclosed in patents to keep up with technological advances and direct their own R&D efforts.

But neither profit nor innovation is enough to justify the full extent of the patent race; that is, a “first come, first served” approach to patent law that does not allow for the same discoveries to be made independently. It is also hard to argue for the way in which the current system encourages breaking patents down into smaller segments that can be exploited for gain on the basis of blocking further innovation.

Patent law requires careful reform that balances the need to keep U.S. innovation from disappearing overseas and the opportunities for boutique innovators to create without fear of excessive litigation.

The relationship between patents and innovation remains uncertain in some ways. One problem is that very often the measure for innovation is the patent itself, and there exists an assumption that a higher number of patents will lead to more innovation.

Photo: Canadian Light Source Feizhou He via photopin (license)

A 2009 study utilized an online game called PatentSim, developed to see how innovation was affected by different patent systems. It featured an abstract model of the innovation process, a database of potential innovations and a network through which users could trade and enforce patents. The software compared a traditional patent system, a “commons” system with no patent protection, and a system with a combination of patents and open-source protection.

The initial results of this study were “inconsistent with the orthodox justification for patent systems”, showing that full or partial patent systems generated significantly lower rates of innovation, productivity, and societal utility than a commons system. Even in repeat studies in which participants knew enough about patents to generate more innovation, the “pure commons” system still returned higher productivity and social utility. Interestingly, the creators of PatentSim decided to patent it.

In a 2013 Wall Street Journal article, Harvard Business School’s Rosabeth Moss Kanter said the patent system was “the innovator’s friend”, but not the friend to a general public that wanted innovations to be used for everyone’s benefit. In other words, innovation is a force for personal gain as well as social good, and often the balance is tipped in favor of one at the expense of the other.

“Industry giants can lock up ideas and sit on patents in order to discourage competition. We should favor “use it or lose it” rules that ensure that true innovators can’t be driven out of an industry because incumbents protect their turf,” Kanter said.

Under current regulations, patent holders are not penalized if they do not use their patents. This allows for the existence of entities like patent holding companies (PHC), patent assertion entities (PAE), and non-practicing entities (NPE).  There are legitimate reasons for these kinds of organizations to exist, but many are what are known as “patent trolls”.

Patent trolls amass patents with the sole intention of filing infringement suits. The Patent Office has a habit of issuing vague patents, allowing the troll to threaten legal action against as many entities as possible and demand licensing fees running into tens or hundreds of thousands of dollars.

2015 was the biggest year to date for patent lawsuits, and two-thirds of these were filed by non-practicing entities. The prevalence of lawsuits of this nature drew attention from President Obama’s administration. A 2011 law, the America Invents Act, made it illegal to file a patent lawsuit against multiple defendants. President Obama also ordered the Patent and Trademark Office to require more specific information about patents and infringements to protect businesses that were “simply using off­ the ­shelf technology”, according to the New York Times.

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Forbes writer Matthew Herper asks whether there is really a “need to ‘fix’ the legal system that has enabled America to become number one in the global biotech, software, hardware, medical devices, energy, genomics, and nanotechnology industries”. Herper claims that reforms to the patent system are “well meaning in their search to restrain patent trolls, but have created tremendous unintended consequences”, most notably in medical biotechnology research and development. “Let us be clear: investments in the biotech industry are based entirely on patents. Without strong patents, we cannot raise money to find cures for disease.”

Earlier this year, we published a discussion of how any attachment of property rights to elements of biology should be treated with extreme care. The patent system is not ideal, but it’s best elements are vital to our economy. This complexity is perhaps described best by two famous economists, Fritz Machlup and Edith Penrose, who stated:

“If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.”

No new technology can be manifest in a vacuum. That is to say, every so-called innovator is dependent on the accomplishments of countless others who have come before them. The societal need for innovation, and its fundamental dependence on past innovations, illustrates the need to capture some of the value of intellectual property for private gain and leave some for public good.

Patents offer an essential safety net to small businesses with new ideas and to high-cost, R&D-intensive research companies. After accounting for cost recovery and preventing blatant appropriation, however, our system of patents has a lot of unintended consequences for which to answer. If these are to be addressed, some kind of Patent Value Tax and public auction of unused patents should be implemented; in the same way that a Land Value Tax would see land changing hands until the right person could maximize its value, patents could be exchanged so that those most useful to society do not sit idle.

It is also worth considering that patents only report a final, positive result of a larger research process, thus hiding failures that others will likely encounter as well. If we are talking about innovation we should recognize the importance of failure,  and that understanding what doesn’t work is also a part of technological progress.

The United Nations Special Rapporteur in the field of cultural rights has concluded that while patents encourage innovative research and development, they are also “dangerous” in their power to deny access and limit public participation in science and culture. The report concludes: “Where patent rights and human rights are in conflict, human rights must prevail.”

 

Featured photo: photo credit: Novartis AG Chemistry in action. Novartis Institutes for BioMedical Research (NIBR), Cambridge, Massachusetts, USA via photopin (license)

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