Patent problems

One thought on “Patent problems”

1. I hoped that writing this column would raise some important questions about where patents do and don’t work in our economy (or in any economy), and whether patents could be made more effective. I received a number of thoughtful comments on e-mail, especially those raising questions about how to effectively value patents.

   Of the blog posts I saw, one at Patentdocs
   in defense of the patent system offered perhaps the most balanced discussion of the question I raised (despite a skewed headline). It noted some of the problems that could exist with the data I based the column on, and a counter from European patent data (though by reputation, at least, European nations are stingier with their patents than the U.S.) It sided strongly in defense of the patent system.

   (As for that headline, the page I write for in the NYT is all about innovation, and it perplexes me that someone would say that publishing a single column that raises a question about part of the innovation process is a sign of bias against innovation.)

   There were the usual knee jerk patent-bashing posts one might expect from those who hate patents. A representative one comes from Fred Wilson, a venture capitalist that thinks patents are stifling innovation, and most people in the technology business would agree with him.

   There were also this disappointing blog post from PatentHawk.
   I’m sure its author knows a good deal about patents and could have written a nuanced critique of the research. In fact, he starts out with two good comments about how he thinks the research should have been characterized, then unravels. Perhaps the testosterone he references midway through kicked in and got the better of him.

   For instance, he seems not to have bothered to read even the short chapter by Bessen and Meurer that the article links to. So he commits the logical fallacy of calling me stupid but accepting my discussion of the research as valid. He pokes fun at me for making what he considers broad and obvious statements about patents, as if the vast majority of NYT readers will know everything he knows about patents.

   Then he turns around and makes strong claims about the actions of large companies but offers not a single example of such actions, as though it would be obvious to everyone. Maybe he’s written about it, in which case a link would have been a nice thing.

   He decries what he calls ‘amateur hour,’ the use of open comment systems on patent applications, despite the PTO’s decision to experiment with this approach. He must know that the likelihood is that most of the comments will come from corporate patent lawyers. That may be something to fear, but he prefers to make it sound as though the unwashed masses will flood the system with worthless comments.

   Finally, he says that history shows that adding another patent appeals court would be a return to the ‘continuing cacophony of conflicting precedents’ that existed prior to the current court’s formation. But there is a space between what we have now and what came before – the author knows those appeals courts weren’t dedicated to patent law. John Duffy, who knows an extraordinary amount about the history of the patent system (and is revising his own legal case book on the subject), told me in my interview with him that the lack of multiple appeals courts looking at patent decisions may be a part of the problem. Creating new specialized appeals courts may not be an effective answer, but it needs to be dismissed for different reasons.

   Whereas one of the most interesting emails I received (which unfortunately is not on a blog) both raised a number of excellent critiques of the research and the idea that since neither patents nor copyrights are ideal for something like software, it needs its own system. That might be wrong-headed, too, but it’s certainly worth thinking about.

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