Patents
My view is increasingly that the patent system is not just flawed and in need of reform but that the very idea of governments granting patents is an error.
I’ve been debating this via various online fora and I’d now like to continue the process here so that I can come up with a clear personal understanding of the arguments.
If you have a point to make, enter it as a comment and I’ll guarantee you a response. I hope to be open minded enough to accept cogent arguments and change my mind if I can see why.
Thanks
Patrick
Comment by Patrick
Ok here goes
Without patents, the rate of production of new ideas would plummet.
Sorry, I don’t agree at all. I am a counterexample. What legal types fail to get is that someone who has a great idea, a genuine commercial winner, will have a handful more soon. They don’t need any incentive to have ideas.
Comment by Patrick
Without patents, as soon as a disruptive product was launched, it would be copied.
Disruptive…that just means new, right, rather than derivative, me-too or copied? Well it might be copied but the process won’t be instant. Do the copiers have access to production facilities and sales channels? Big companies, that do have these resources, steal small companies’ ideas all the time anyway. Small companies can’t afford litigation (why is this always discounted?).
Is it really up to governments to defend companies? Also, if copying occurs, companies compete for customers on price or cleverness in manufacture/distribution/service…all of which are good for citizens.
Either you believe in capitalism or you don’t. It makes me laugh to hear ardent free-marketeers strident in defence of this government protectionism.
Comment by Patrick
People would, without patents, keep their innovations to themselves and society would be denied all these useful trade secrets and know-how.
Seems bogus to me. People are currently much more likely to keep quiet about their advances, because they don’t want the legal system to trample them into the dust.
Also, for all the publishing of patent material that occurs, much of it is deliberately obfuscated (ie using odd terms etc) for competitive, commercial reasons. That seems like cheating on the deal to me.
Comment by jon cg
I’ve got to agree that the idea of patent’s seems increasingly ridiculous to me
It’s a world where only those with a good cash flow can afford to maintain patents, so favours big business, as well as the little man being able to mount or withstand expensive legal proceedings.
Patent law is barely respected internationally in a time where much production is off shored anyway, also me too products seem to pop up anyway.
I wonder whether an open source approach to life would be better. I feel for the standing on shoulder’s of giants arguments and the betterment of human kind that it would be the best but then that’s easy for me to as I’ve never had an idea stolen.
Comment by Patrick
Open source is very well-intentioned and results in the creation of some first-class products (eg Mint, the novice-friendly version of Ubuntu). I’m a bit concerned, though, that it is a movement reliant on lots of people who have well-paid dayjobs…so the real costs are often masked -and covered by people who aren’t consumers of the products.
Comment by Patrick
Thinking about this further, I can imagine a situation where several competitor companies have knowledge of a great new invention but they won’t commit to any development because that would mean effectively doing work free for the opposition, who would just grab the benefits. So what then? No innovation?
Nonsense, what frequently happens in reality is that companies in the same marketplace call a meeting and agree some kind of joint venture. They share resources and profits, without years of arguing over IP. They may even still vie with each other intensely in other areas.
After the joint project, they compete in terms of the product sales/support/maintenance business -this happens all the time in the automotive and aerospace industries. Certainly, the aerospace industry has very high levels of innovation, cooperation and competition -manufacturers are now principally service organisations.
Old-style IP thinking is now too slow and too costly. Innovation often happens quite well enough without it.
Comment by Patrick
Can anyone put forward some reasons why patents are good for anyone -other than a few Pharma and IT giants (and patent attorneys)? I’m genuinely interested in getting my head straight about this. Maybe people feel that patents allows small guys a way to negotiate with companies which would otherwise be impossible?
Comment by Sean
Patents are a restraint (albeit an imperfect one) to hold back those already dominant in a market from squashing all competition.
In a market where a brand leader holds all the goodwill (and has all the cash) and an inventor provides an improvement to that product the only thing which will give that inventor a toe hold in the market is protection of their IP.
Try a thought experiment. A man invents a hypothetical electronic device which will control a car so that the fuel efficiency is improved by 50%. The benefits are clear, by using this invention drivers will save huge amounts of cash and carbon emissions will drop enormously. The market for this invention would be huge.
In a world without patent protection as soon as our inventor sells his first product: what is to prevent BMW, GM, Ford and the rest from copying it?
Why should those companies be able to steal his invention and pay him no reward? It doesn’t make logical or moral sense.
Access to the legal system costs money, true. But that is not an argument for depriving people of the protection offered that is offered by the law – that would throw the baby out with the bathwater. Throwing up your hands and saying “I don’t like this system” is not a solution; the outcome of doing away with the present system (imperfect as it is) would be the removal of any protection at all for inventors.
Matters of public policy aside, there is no moral justification for allowing people to steal other peoples inventions – the law should not allow it.
Comment by Patrick
Many thanks for this thoughtful contribution Sean.
I’m afraid I don’t think there’s much point in providing society’s major innovators with legal rights that they can’t afford to exercise…I’ll be posting about this issue, and reiterating my alternative, very soon.
Cheers,
Patrick
Comment by Sean
If they can’t afford to enforce their rights themselves they can sell (or license them) to some one who can. Alternatively they can find litigators who will operate on a contingency fee basis.
Interested to hear a proposal for a genuinely workable alternative
Comment by Patrick
It currently costs me about £2k to get a professional patent application made to the UK Patent Office (no point whatever me writing it myself, since it won’t stand up to scrutiny in court). If I then decide to make PCT applications to say two or three foreign jurisdictions (assuming no translations are required), the total cost of my initial application is always going to be of the order of £15k, minimum (even after I negotiate with patent agents who do all my regular work). Even assuming I have this cash available, have you ever actually tried to negotiate a deal with a potential licensee, given they are aware of the fact that very few inventors can afford to go beyond this point without their buy-in? It’s possible to wait around until the patent is granted, in order to have something concrete about which to negotiate, but that commits you to an increasing scale of maintenance payments -and potential licensees *know* that it’s almost certainly beyond your budget.
“Litigators who will operate on a contingency fee basis”? The nearest I ever came to such a possibility was a lawyer in Cambridge who told me not to worry about paying his fees because that could all get ‘sorted out’ when I was making money from the idea under discussion. In other words, they wanted a blank cheque. If you can recommend any lawyers who will take on my patent work on a contractual risk-sharing basis, I’d be very pleased to talk to them. This may be a UK-specific problem.
Why are you interested in alternative proposals, if the present system suffices?
Comment by Brent Farley
Patrick — PLEASE call brent farley if you find the time and still use the phone. I think we can have a fun call for both of us.THANKS brent ..
Comment by Patrick
Forgiveness or permission?
This interesting article about Pinterest set me thinking about the implications of their model for patents.
Imagine I create some product which involves making use of the IP of various individuals and corporations (I’m not happy that corporations can own IP, but let’s skip that for the moment).
I take a big risk by manufacturing and selling my system; guaranteeing to return a large slice of (any) profits to any rights owners in return for licences (when they show me a relevant patent). This slice would be in proportion to any party’s investment in the patent or subsequent licenses. It might for example be a uniform 90% of their patent costs + 10% of all subsequent revenue.
The patent holder could say ‘don’t start making anything before you buy a licence from me’…but at least my way provides the patent owner with a return which reflects the market value of the idea embodied in a product, rather than a take-it-or-leave it upfront guess (which I couldn’t afford without sales income anyway).
I carry the risk that my investment may never pay off, but I’m unlikely to be sued for handing the owner money (and publicity) he/she would not have earned without me (especially if I start with so little money that I’m hardly worth swatting).
My actions might cannibalise some of the business the owner might have generated, but that is a lot of mights when stacked up against some actual money.