When Consumers Innovate To Solve Their Own Needs, Do Patents Just Get In The Way?

Patents

from the so-says-the-evidence dept

Thu, Feb 10th 2011 10:34am — Mike Masnick

We were just discussing the White House's request for how to improve American innovation and, in my response, I mentioned just a few pieces of the recent research about problems with the patent system -- including the research by Eric von Hippel (which we had mentioned previously), which suggested that very theory behind patents is completely wrong. Patents are based on the theory that companies need an extra incentive to innovate. But what von Hippel's research had shown was that the vast majority of innovation actually came about because someone had a need for something, and then figured out how to create it. In other words, the incentive wasn't about how much money they could make, but in solving their own specific problem.

And, with a bit of perfect timing, the NY Times just put up an article covering the latest bit of von Hippel's research that extends the research we talked about from last year. It appears to still be the same basic research, but it notes that the vast majority of innovation these days doesn't even come from companies, but from individuals who are just trying to solve a problem for themselves. Once again, the point is that the very basis of the patent system seems to ignore this version of innovation, even though it's much more common than the mythical one on which the patent system is based.

The other interesting bit of news is that apparently various European governments -- from the UK, Finland and Portugal -- are quite interested in his research, with each contributing to help drive it forward. The US? Not so much: "there doesn't seem to be as much interest here." Great. So just as the US claims it wants to know how to remove barriers for innovation, one of the researchers, who actually has the research to help, can't get any attention.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: eric von hippel, innovation, patents

27 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

John Doe, 10 Feb 2011 @ 10:52am

Typical of research in general
When the research doesn't say what you want it to say, you just ignore it.
[ link to this | view in thread ]
Christopher Gizzi (profile), 10 Feb 2011 @ 10:59am

Old Saying
Necessity is the mother of invention.

Its an old but true saying. The incentive to innovate doesn't come from a patent. It comes from a specific need. The cave people didn't have patents and yet they invented tools just fine. And they innovated, too. They actually shared that information and things got lighter, sharper, stronger. We taught others to fish and developed better tools to do so. That shared knowledge actually allowed our brains to grow (perhaps too big) and migrate to vast regions of the globe.

So any argument that invention or innovation would stop if you got rid of patents is the silliest idea ever. As much as I appreciate long studies proving that in economic models, any anthropologist could have told you that from their own (probably long) studies.
[ link to this | view in thread ]
el_segfaulto (profile), 10 Feb 2011 @ 11:30am

Life is difficult
I've had a couple of letters sent to me for alleged patent violations on websites I've developed. Everything from dropdown menus, to captchas, and look and feel seems to be under somebody's ownership. Typically I ignore the letters/emails but it makes me nervous whenever I put new content up. As far as I'm concerned if I come up with the exact same solution to the same problem (on my own) then your patent obviously wasn't that novel.
[ link to this | view in thread ]
Wilsonzoo (profile), 10 Feb 2011 @ 11:32am

Necessity
Necessity is not the mother of invention, laziness is. People invent things to get out of doing boring or unpleasant work.

Example: The hammer was invented because someone got tired of mashing their fingers between the rock and whatever they were hitting.
[ link to this | view in thread ]
blah, 10 Feb 2011 @ 11:37am

Re: Necessity
You used the wrong example, the hammer is an example of a lever "simple machine" - by extending ones arm, you have the ability to hit your target harder with less velocity and weight - thus getting more work done without increasing your brute strength.
[ link to this | view in thread ]
Christopher Gizzi (profile), 10 Feb 2011 @ 11:46am

Re: Necessity
I hate to be the one to point this out to you (not really) but one's laziness and the desire to do something with less work is, in fact, a need. An invention can fill that need to so something with less energy. Of course, it doesn't stop at physical energy.

And your hammer example is really bad because anyone who's used a hammer before knows it doesn't save your fingers from getting mashed. :-/
[ link to this | view in thread ]
btrussell (profile), 10 Feb 2011 @ 12:22pm

Re: Necessity
Those people were using their head. Forehead, to be exact. They were too lazy to pick up a rock.
[ link to this | view in thread ]
The eejit (profile), 10 Feb 2011 @ 12:31pm

Re: Necessity
I keep hitting my head against a wall, instead of using the hammer. Can i patent that, or has it already been done?
[ link to this | view in thread ]
penstock (profile), 10 Feb 2011 @ 1:45pm

Solving Problems vs. Patenting For Business Requirements
I've been inventing various things since I was thirteen years old -- dozen of things -- and each effort was an attempt to solve a problem. Sometimes these problems were born out of personal "need" -- but more often than not, they were the result of an "observation" that led to a "personal challenge" to solve a difficult problem that others had not been able to do. Many years later, my inventions began to slam into the harsh realities of trying to do business in today's marketplace. Patents are a necessity - like having to "anty in" to sit down and join a poker game. It has little to do with solving problems nor innovation. It's more like having to pay taxes in order to stay in business. And because the patent development process is so time consuming and tedious, I'd rather not have to bother with it -- but I must -- because these business organizations rely on patents to create equity and to protect their investments.
[ link to this | view in thread ]
Dennis S. (profile), 10 Feb 2011 @ 2:24pm

And then there's questions of accessibility (both in terms of cost and otherwise)
I just saw this post about someone creating something to help someone else with a disability and it reminded me of this article.

Hack a Day - Talking joystick mouse
http://hackaday.com/2011/02/10/talking-joystick-mouse/

Instructables - Talking Joystick Mouse
http://www.instructables.com/id/Talking-Joystick-Mouse/

There are a lot of comments about the cost of the commercial version, and after reading the full story on Instructables the cynic in me wondered how long until the creator of this improved product is sued by the creator of the original commercial one because of a patent.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2011 @ 3:36pm

The funny part is if consumers are innovating only to solve their own problems, there is no issue. The only issue would be if they are replicating others work for commercial sale. If they are just making something for themselves who cares?
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2011 @ 4:49pm

Re:
Agree, and, hence, the answer to the question posed in the headline of this article is a resounding "No".
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2011 @ 7:01pm

Re:
and what's wrong with consumers then becoming producers and selling their independently created inventions w/o having to worry about being sued for infringement. That's when patents get in the way.
[ link to this | view in thread ]
CarlWeathersForPres (profile), 10 Feb 2011 @ 8:10pm

Get your brooms, I call shenanigans
Mike,
I think you're missing the point of what von Hippel has published. In the article linked through your blog post from last April(which was updated in August), he essentially looks at innovation in terms of costs, and concludes something which is rather intuitive, "if it's simple and cheap, individuals do it, if not innovation is done by groups"(which is essentially what this times article is saying, people will color half of a clock because it's easy and cheap but won't invent a cure for cancer because it's tougher and more expensive) and then when looking at the group dynamic, he states that open networks are efficient when communication costs(the effort it takes to share information) are low.

In my opinion, the problem with the reliance on the open source community, and he states it in his article, is that the reason the costs are so low is that typically the innovators do the work for free(or for donations once the product is produced). This is fine if you're aggregating 20 people to work part-time after working hours, but becomes more difficult if this is your primary model of innovation, since there is a very high upfront cost and a lot of risk in the hope that others like your product.

In terms of eliminating patents, I don't really see how he argues for it at all, except for the cases where cost of production of the end product is so low that there is no incentive to steal the product(software) or the demand is so low that there is no reason to mass produce it(specialty equipment/chemicals). For mass produced products with a wide range of consumers, the incentive to steal the idea is high, so unless the innovator makes a huge gamble to get a head of the competition by creating a facility with a large production capacity(and keep his prices low enough so that there is little incentive for competitors to enter the market), there's a pretty strong likelihood that the innovator would leveraged out of the market that he created, and there's less of a chance that he would see the return on efforts.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2011 @ 11:20pm

Re: Get your brooms, I call shenanigans
"I think you're missing the point of what von Hippel has published."

He's just not make the same point that you are trying to make. Heck, he may not even be making the same point that the author is making, but that's not to say he's not making a valid point.

Also, it's not stealing, it's infringement, and there is nothing wrong with it. and often times different people come up with the same idea independently and patents often just get in the way. There is no reason to assume that others doing the same thing (whether independently or through replication) means that patents should exist. Instead, others doing the same thing could encourage companies to keep innovating to set themselves apart. and many innovations are incremental in nature and aren't a result of high upfront costs causing sporadic leaps. Patents will only get in the way of such innovations and there is little to no evidence that they help innovation to begin with.

In the case of heavy R&D, if a company gets a patent before investing any money on R&D, then the idea (or design) that the patent is on has no R&D value and is on something obvious that others can easily figure out based on currently existing knowledge. and companies could be hesitant to conduct expensive R&D before applying for a patent because then someone else may get (or have) a (broad) patent and sue them if the companies expensive R&D succeeds to produce something marketable.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2011 @ 11:53pm

Re: Re: Get your brooms, I call shenanigans
It's possible to draw conclusions from a publication different from the conclusions drawn by the authors of that publication and there is nothing wrong with doing so.
[ link to this | view in thread ]
Vic Kley, 11 Feb 2011 @ 5:04am

When consumers innovate??
Consumers innovate- by this apparently Masnik means individuals, and at this point his point is lost entirely. He fails utterly to explain to us who is enforcing patents against consumers or individuals. Perhaps he woke up in one of sleeping at the keyboard sessions with his column and mixed up copyright infringement with patent infringement.

Enforcement of a patent against individuals is almost unheard of- while enforcement for taking of music, or writing, or movies etc., is quite common. Of course Masnik 's little rice bowl is filled by dint of copyrights so he has never given us drivel and idiocy on the theme of...... Why Do We Need Copyrights?

Consumers inventing is a non-issue; consumers putting on a manufacturers hat and selling someone else's ideas is where the patent enforcement comes in as well it should.
[ link to this | view in thread ]
Bruce Ediger (profile), 11 Feb 2011 @ 5:54am

Re: Old Saying
Personally, I agree with your old saying, for sufficiently large values of "necessity". But others think otherwise:

�"Necessity is the mother of invention" is a silly proverb. "Necessity is the mother of futile dodges" is much closer to the truth. The basis of growth of modern invention is science, and science is almost wholly the outgrowth of pleasurable intellectual curiosity.�
� Alfred North Whitehead

It's an argument from authority, of course, and therefore HIGHLY suspect, but it rings true in at least some circumstances.
[ link to this | view in thread ]
Bruce Ediger (profile), 11 Feb 2011 @ 6:00am

Re: Life is difficult
Multiple simultaneous inventions seems to me the rock upon which the moral basis of "intellectual property" founders.

Multiple invention exposes two problems with the idea of "intellectual property".

1. The immorality of giving a single entity control over a single idea. If IP is "property" then anybody who independently invents some concept or idea should on a moral basis be given a share of the benefits of that property. "Filing first" or "inventing first" as a rule for awarding a patent to a single person is just immoral in that light.

2. It undermines the "concept as property" idea based on the exceptionalism of invention. If more than one person can come up with a concept or an idea, the act of invention isn't all that super-duper special, and doesn't really need all the legal protection proposed for it.
[ link to this | view in thread ]
Gene Cavanaugh, 11 Feb 2011 @ 6:35am

Patents and Innovation
"Patents are based on the theory that companies need an extra incentive to innovate. But what von Hippel's research had shown was that the vast majority of innovation actually came about because someone had a need for something, and then figured out how to create it. In other words, the incentive wasn't about how much money they could make, but in solving their own specific problem."

Clearly there is a problem with the IP system (not just patents, but patents, trademarks, and copyrights).
Clearly we need massive reform (though there is no hope without campaign finance reform; to be a legislator, you need massive funding from the wealthy).

However, "pegging" at one extreme is as bad as "pegging" at the other extreme. We need some form of IP, especially in patents, because otherwise when someone invents something, why would they make the information public? Why not be super secretive, and keep the invention locked up privately? With IP, there is incentive to share.
[ link to this | view in thread ]
staff, 11 Feb 2011 @ 6:53am

Hippel irrelevant
"research about problems with the patent system -- including the research by Eric von Hippel "

The purpose of the patent system is to encourage inventors to invent. Whether or not Hippel or any other academician thinks it does so is irrelevant. What matters is what inventors think because only their opinions will determine whether they will risk their life savings in an attempt to bring a new product or process to market. That is what Congress and the PTO need to be focused on. And because small entity inventors create the lions share of new jobs, those are the entities in these troubling high unemployment times that both should be most tuned into. Naturally, neither are. That is how dysfunctional the federal government is. Politicians and bureaucrats are more concerned with getting reelected or the potential for cushy post government jobs than they are about good government. Maybe it's time for a revolt in America?

For a thoughtful analysis of patent issues, please see http://truereform.piausa.org.
[ link to this | view in thread ]
btrussell (profile), 11 Feb 2011 @ 6:53am

"With IP, there is incentive to share."

Why are so many being sued for sharing then?

With IP, there is incentive to horde and extract every last cent they can get. That is not sharing.
[ link to this | view in thread ]
Christopher Gizzi (profile), 11 Feb 2011 @ 7:37am

Re:
Not so simple, though.

Not every personal invention is private. A person's website is generally public and some company can claim they own a patent on something they independently developed. So if they solved a problem with some code they developed, but it was already invented by some other company, they're a target.

Now that person has to defend against a lawsuit.
[ link to this | view in thread ]
Anonymous Coward, 11 Feb 2011 @ 7:37am

Re: Patents and Innovation
Open source changed that dynamic.

Why people on open source produce and create and share with everybody?
[ link to this | view in thread ]
Anonymous Coward, 11 Feb 2011 @ 7:44am

Re: Hippel irrelevant
Did he paid the Einstein foundation for the use of Eisntein's image?
[ link to this | view in thread ]
CarlWeathersForPres (profile), 11 Feb 2011 @ 12:01pm

Re: Re: Get your brooms, I call shenanigans
My problem is that Mike is using these studies as a definitive statement of the entire system being wrong, when in reality it's defining the dynamics of how it works, and in the conclusion says all 3 are necessary. He's also linked to a few academic papers as "proof" when there is no data, just conjecture.

I used steal in the sense of a world without IP(you take someone's idea and capitalize on it). Maybe copy would have been a better term. Either way, the point is the same, if you and 15 other people work for 4 months on the solution to a difficult problem, you expect some sort of compensation so you can eat/pay the heat/etc. If you're looking to manufacture a drug(most pronounced example), it would take pfizer(or GSK/other conglomorate) 2 weeks to revers engineer the formula and batch produce the pills, which at that time you wouldn't even have manufacturing.

You're right, innovations are incremental, as Einstein stole from Newton "I see further because I stand on the shoulders of giants." But a patent isn't necessarily to protect research already done or to encourage research, it's to protect the capital investment to commercialize that invention. Honestly, as a patent holder I don't see the incentive to stop people from continuing research on that patent. So you're telling me that I can make a little bit of money off someone else improving what I did? Where do I sign up?

Now, patent trolls and defensive patenting(for holding, not using) are a completely different issue, which I believe(but haven't researched) go against the constitutional provision("To promote the progress of science and the useful arts"). Honestly, the reason for a patent is to get your foot in the door of that market so that you can be rewarded, not to stifle the legitimate work of scientists.
[ link to this | view in thread ]
Ben (profile), 12 Feb 2011 @ 6:56pm

Re: Life is difficult
In other news, "MPEG LA starts the search for VP8 patents"...

'cause On2 obviously had to use some patent while making the codec. Seriously, if your patent(s) was actually fundamental this would have come out during Google's acquisition.
[ link to this | view in thread ]