Patent Panel Offers No Real Solution To Patent Problem

from the not-much-new dept

Back at the Tech Policy Summit, there was a panel on whether or not the current patent system had a chilling effect on innovation. Jon Dudas from the patent office was supposed to be here, but couldn't make it due to weather. However, he probably didn't miss much. The rest of the panel, including Tim Craen, the chief intellectual property officer from SAP, Nathan Myhrvold, the founder of Intellectual Ventures, and Mark Lemley, a professor of law at Stanford who has written extensively about the patent system, didn't really say very much that was surprising or even confrontational. The panel was, if anything, too friendly. Myhrvold, who many consider to be trying to make patent trolling respectable, made a few bizarre statements, such as saying that those complaining about patents are doing so because it's a "cultural issue" and that the tech industry just doesn't have the same respect for patents as other industries. He also denied there was really much of a problem, and said that there really hasn't been a litigation increase, when put relative to the number of patent applications. Of course, that ignores that the reason for the explosion of patent applications is because the federal courts have been ruling strongly in favor of patent holders for the past few decades.

Lemley made some very good points about how plenty of solutions to the problems can come via business agreements rather than the courts, and the trick is to put in place the incentives to make it possible for companies to solve these problems with agreements between each other, while also recognizing the specifics of individual circumstances (such as not always granting an injunction in patent lawsuits, as per the MercExchange/eBay decision). Myhrvold responded, again, that this isn't in the "culture" of the tech industry -- where it's just natural to see what you can get away with. Of course, that ignores the idea that part of the real problem (which wasn't addressed at all) is that many of the problems have to deal with cases where companies developed similar concepts independently. Instead, he seems to assume that these big inventions are created by one person (or company) and only they deserve the rights to it -- and it's impossible that anyone else may have come up with the idea separately. From the audience, former FTC Commissioner Mozelle Thompson pointed out that encouraging companies to come to agreements outside of court could raise antitrust issues, since companies could come to "agreements" that give one company a market in exchange for staying out of another one. The panelists basically said that it has to be allowed and you just watch for the worst abuses.

However, overall, nothing really that shocking came out of the panel. The guy from SAP kept pointing out that you need to balance the incentives for competition with the incentives for intellectual property creation. That's an interesting point, that recognizes there are competing forces when it comes to intellectual property, but there was no one on the panel who was willing to argue about the net impact of patents and how balance is often a catch phrase used to argue that you're really giving in on an issue when you're actually pushing one side. There were arguments about how countries can't advance industrially without stronger IP protection (which ignores the history of places like the Netherlands and Switzerland), but no one on the panel was willing to note that the patent system all too often represents a net negative to innovation. Too bad.