Monday, 3 December 2012

What Do Patents Encourage?

     A month ago, I posted complaining about how copyright law has imposed costs on the rest of us, prompted by my frustration in trying to legitimately copy some files from a CD-ROM to an iPad. This morning I had an experience that added to my frustration with intellectual property law, this time in the form of patents.
     The whole reason for having patent law is to encourage innovation, but at least sometimes I suspect  it does the opposite. I was driving my son to school in an older car a cassette deck where the CD player ought to be, when it occurred to me that, given how small MP3 players are now, shouldn't it be possible to build one into a device that emulated a tape cassette? You just make a little induction coil or some such gadget to interface with the tape head of the cassette player, and use that as an output. Have sensors in the reel sockets to detect when the cassette thinks it's playing, rewinding or fast-forwarding, maybe even have them draw some power from them for recharging, and there you go. All the technology to do this exists; it should be fairly simple to build such a device.
     As I thought about this, I realized that there were various hurdles to overcome besides the technical. The first one, I thought, from a business perspective would be market: how much demand would there actually be for this thing? I mean, there are still cassette players around, but for how much longer, and is it cost-effective for anyone to buy this gadget instead of just getting something up-to-date? But perhaps, if it were cheap enough, for people who just like their old stereo systems.
     The thing that really gave me pause, though, was patent law. Surely, I thought, someone else would have thought of this invention before I did. And that meant that if I were to go out and create this device and try to sell it, I'd probably get sued by whoever registered the patent on it. Even if nobody else had patented it and I didn't want to apply for a patent myself, I'd still need to search through patents to ensure that I wouldn't be running afoul of someone else's rights by creating such a device.

     This is all academic, of course, because I'm not at all technically adept enough to design and build this thing, and I'm not actually all that interested in marketing it either. (Also, I was right that someone else probably had thought of it, and built it. Turns out there are several on the market already.) But what I found striking was that of all the obstacles to turning an idea into a reality, the one that discouraged me the most was the whole business of patents. I just didn't want to have anything to do with the kind of research that would involve, and I've been to law school!

     That's not to say that patent law always discourages innovation. For people and companies who have ideas with solid economic potential, it is certainly worthwhile to invest the time and resources in developing the invention and applying for the patent. But for borderline case? For things that might be useful? Here is where things get iffy.
     Laws are generally intended to promote some sort of behaviour and discourage others, but it often turns out that the behaviour a law actually  promotes is not the behaviour it's intended to promote. Cynically, some people (wrongly) say "it's only illegal if you get caught." More accurately, you're only punished if you get caught, but the point here is that people often consider it more cost-effective to modify their behaviour around the practical consequences more than the actual intention of the law.
     Patent law is no different. As much as we might want patent law to encourage innovation, it isn't actually innovation that is encouraged, but the use of patent law itself. You aren't rewarded for coming up with and marketing a good idea so much as you're rewarded for applying for and asserting patent rights. Suppose two identical twins separated at birth independently come up with a brilliant idea, and both go through all the steps needed to develop it for market, but one of them applies for a patent and the other doesn't. Which one will reap the rewards? Clearly, all other things being equal (and here we've postulated that they are), it's the act of going to the patent office that's rewarded, not the innovation itself.

     Again, I don't have a solution for this. I don't have an alternative to patents to propose here, anymore than I was able to suggest an alternative to copyright. But I do think we should be aware of how sometimes our policies work against themselves.


  1. A few ideas occur to me. There are arguments for and against each one but given the enormous impact this issue has on the economy they're definitely worth talking about. I'd also note this is mostly about the USPTO as it has a disproportionate impact on patents worldwide.

    1. Eliminate software and process patents. They allow the patenting of ideas without actual implementation. I should not be able patent something without at least knowing how to implement it.

    2. Provide a better way to search through existing patents. One of the principles behind them is that by making them publicly available you get the right to license them. Right now searching through the U.S. patent database is a frustrating experience. I'm pretty sure there are some data mining techniques in the patent database that could be used to improve it.

    3. Related to that: Enforce a simpler language on patents.

    4. Drastically increase the budget to the USPTO so they can actually afford to properly process the massive number of patents they have to deal with. Right now the policy seems to be: "When in doubt, approve it and let the courts deal with it."

  2. These are fine ideas, but they don't address the central concern I was writing about, which is that the very existence of patent law can act as a barrier to innovation in some cases. Making it easier to search through patents would alleviate this somewhat, but the fact that you have to do it at all is the barrier I'm talking about.

    Consider the example I gave, of my thinking up an idea for an MP3->cassette adapter gadget. In the absence of patent legislation, someone more technically adept than myself might have just gone home and designed and built the thing, maybe selling a few if it worked, improving on it and perhaps growing it into a profitable business. But under the current patent regime, it's not enough to come up with an idea yourself; you need to establish that no one else did so independently. And even searching through existing patents isn't necessarily going to do the trick; someone else might still have come up with the idea and NOT patented it, which as prior art is going to cause problems for you if your patent ever is the subject of litigation. So in some ways the risk is actually higher to come up with an invention and try to do anything with it, than it would be without patent law existing at all.

    Copyright works differently, and while I also think copyright is a terribly kludge, there is at least one element that seems a little more intuitive from a moral sense, under the Berne Convention, and that's the way ownership inheres the instant you create something, rather than when you apply for protection. If I write a story independently, I don't need to go out and establish that no one else has written a similar story (though a good writer should read a lot of other stuff anyway). Thought experiment: How much new creative stuff would actually be published if we had to search through the Copyright Office to make sure no one had written something similar, or risk being sued when we published? WIth copyright, it's statistically (practically) impossible to create a derivative work without actually DERIVING it from someone else's material; with patent, you can infringe even if you develop your idea completely independently.

  3. I think the question is not whether or not patents can act as a barrier to innovation but whether patents prevent more innovation than they spur. To continue with your example, why would I bother developing said MP3->cassette adapter if I know that larger, more well known companies can just copy it, pour their massive marketing engines behind the copy and leave me with nothing to show for my innovation?

    This is where I think reining in the types of things you can patent will help a lot by reducing the chances you might inadvertently violate someone else's patent.

    I do think your assessment of prior art is a bit broad. Prior art requires more than just someone having thought of something. The idea has to have been available publicly. So trade secrets don't count to prior art, nor do unpublished ideas. Again providing better means of searching existing patents will help.

    Copyright is a bit more narrow than patents. I can copyright a story and characters but I can't copyright a type of story. Thus the multitude of variations of Lord of the Rings that flooded my childhood. :)

    I believe with code you can copyright a method of accomplishing a task but not the idea of accomplishing that task.

  4. Oh, I agree: do patents encourage more than they discourage? That's the question. All I'm asserting here is that the amount of innovation they discourage is non-zero.

    My point about prior art WAS broad, but deliberately so. It isn't just a worry that someone else somewhere might have had the idea already, but that someone somewhere might be proceeding (perhaps on a small scale, perhaps just escaping your notice) and you might only find out about it once you try to assert your patent, either against them or against someone who knows about them (or manages to find out about them in the course of litigation).

    I only brought up copyright to contrast the means of acquiring protection. I certainly don't think that's the way it should work for patents, only that inventors have the additional mess of unknowns to worry about: has someone else already done this? Copyright doesn't oblige you to look. (In fact, perversely, you're almost better off NOT looking, so you can more genuinely argue that you weren't influenced by someone else's creation.)