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IP, Patent

Innovation Is Either Bought Or Stolen

The patent system is under attack on several fronts, whether from large corporations lobbying to overturn 250 years of precedent, collectivists seeking to impose their IP values on us all, or members of the media intent on smearing the reputation of IP owners.  Of course, while the patent system serves inventors by securing exclusive rights, corporations need to acquire those rights in order to commercialize products practicing the invention.

Unfortunately, not all corporations want to pay, and the media prefers to act as an accomplice to theft of invention rather than as watchdog for the inventors.  Consider Techdirt author Mike Masnick’s convenient definition of “innovation” as contrasted with the act of invention, which he wrote back in 2007:

Invention is the practice of coming up with something new. Innovation, however, is delivering something new to a market that wants it. In other words, innovation is figuring out how to take something new and actually bring it to market successfully. … An invention without the corresponding innovation is somewhat useless. Unfortunately, though, the patent system is much more focused on rewarding invention, rather than innovation (and, it often hinders innovation by making it more expensive).

Via The iPhone Highlights The Difference Between Invention And Innovation

More recently, Masnick outright advocated for wholesale copying of ideas as the key to innovation:

In other words, yet again, we see that the strategies that make the most sense for the greatest output tend to be those where participants in a market have the ability to copy others.

Via Innovation By Imitation: Study Shows That Success Comes From Imitation

I should note at this point that I have no problem with a firm copying a proprietary invention, if the firm obtains a license first.  The patent system rewards invention because the separation of knowledge from rights incentivizes the exploration of knowledge. After all, if inventions can simply be copied by others without remuneration, how many new inventions can we count on?

Thus, while its preferable that commercializing firms pay to license inventions incorporated into its products, it appears that some firms would prefer just to use them for free. Consider this statement from Michelle Lee, head of patent strategy for Google:

Once a driver of creativity, our patent system now poses a hurdle for innovation.

via Google Public Policy Blog: Patent reform needed more than ever.

This is an interesting statement, but given Google’s moxie to run up the tab on litigation, while lobbying for patent reform based, in part, on the cost of litigation, this statement may need to be supplemented in order to be understood.  After all, perhaps Lee means:

“Once a driver of creativity [when our founder gave us exclusive rights to an invention forming the basis for our entire company], our patent system now poses a hurdle for innovation [because it requires us to actually pay for the dozens of inventions we want to combine into our new products and services].”

That must have been what she meant.

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Discussion

7 thoughts on “Innovation Is Either Bought Or Stolen

  1. Where does independent invention fit in to this picture? Do you consider it theft?

    My experience in the software industry suggests that at least a significant fraction of the patent infringement suits that people like me find so objectionable involve independent invention rather than copying.

    Are you in favor of an independent inventor defense, as advocated by some of the proponents of patent reform?

    Posted by Daniel Tunkelang | March 21, 2011, 1:24 am
  2. Daniel,

    I do analogize it to theft where circumstances indicate that the independent creator had reason/ability to know (at least constructively) about a prior invention or intentionally avoids learning of prior inventions.

    Other situations, such as an independent creator adopting a product that later becomes patented (e.g., delays by the patent office) are not analogous to theft, but still culpable if the creator continues to use the invention after learning about the patent.

    I am in favor of an independent inventor defense if if the independent inventor’s work predated the patented inventor’s date of invention. Interestingly, this is currently a defense to patent infringement, and the patent reform bill would actually eliminate it.

    Posted by Patrick | March 21, 2011, 9:30 am
  3. I guess it’s just another case where we agree to disagree. Independent invention implies that patent protection was not necessary as an economic incentive — i.e., there was someone who would have independently invested the necessary R&D without the incentive of a temporary monopoly on the invention.

    I understand the practical challenges with an independent inventor defense, especially if the burden of proof rests on the patent holder, but as a matter of principle I don’t understand how you can equate independent invention to theft.

    Posted by Daniel Tunkelang | March 21, 2011, 10:50 am
  4. I don’t believe in a patent system where the merits of individual patents are judged on the basis of whether patent protection was “necessary as an economic incentive.” (I don’t find such a system to be workable, nor do I find it to be wise, nor do I believe such a system was intended by the Constitutional language).

    Instead, the patent system was created because it was decided that doing so would generate a net benefit to society.

    The primary benefit of the patent system is not investment in R&D (that happens oftentimes before patent protection can even be determined). Rather, the primary benefit of the patent system is in the disclosure of the inventions to the world.

    You might be interested in my post: Power Play: Are Trade Secrets More Powerful Than Patents?

    Regarding benefits of the patent system, I noted:

    Such claims ignore the patent quid pro quo, which is disclosure of how to make and use the invention. While we may get the commercial benefit of a firm’s innovation protected through trade secret, society at large may get little to no information about the technology behind it. Discovering this information may only come at great expense, so patents are a way of encouraging this disclosure and inspring further innovations.

    More on point to this discussion, is my discussion of the independent inventor defense:

    Naysayers point out that infringers can be sued even when they re-create the invention without knowledge of the patent in the first place. Because of this independent act of invention, the disclosure fails to provide a benefit to society, or so the argument goes. Of course, its true that independent invention is no defense to patent infringement, but that’s due to the fact that patents are awarded not to anyone who invents, but to the first person to invent. The fact that the second to invent didn’t realize he was re-creating the wheel doesn’t change the fact that he did. Similarly, the original inventor put the world on notice and can’t be blamed if others choose not to educate themselves.

    Posted by Patrick | March 21, 2011, 11:13 am

Trackbacks/Pingbacks

  1. Pingback: Edison Nation Wants YOU(r Patent) « Gametime IP - March 21, 2011

  2. Pingback: Google: The First Lemming Into The Nortel Patent Canyon « Gametime IP - April 7, 2011

  3. Pingback: The Anti-IP Entitlement Mentality « Gametime IP - April 28, 2011

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