Time for a change in patent law
Contrary to what you might think, patent laws are not in place to help the little guy.
By Paul Rako, Technical Editor -- EDN, March 5, 2009
The inventions of Scottish inventor and engineer James Watt in the late 18th and early 19th centuries led to the improvement of the steam engine and, ultimately, to the Industrial Revolution. So, it was with sadness that I read recently that he played the patent system like a violin to make himself rich with licensing fees while suppressing important improvements. This behavior continued until the time limits on the patents ran out, at which time a huge surge of innovation pushed England into the industrial age and provided plenty of tax money in the process. Economists Michele Boldrin and David K Levine make these observations in their free online book about the difficulties of intellectual-property law (Reference 1). In a more recent example, the late inventor Jerome Lemelson emulated Watt’s behavior: “He didn’t invent anything new; he simply looked for technical trends and submitted overstuffed claims that baffled patent examiners” while raking in nearly $1.5 billion in licensing fees and royalties, according to a 2001 article (Reference 2).
I don’t think that everything should be free. But a 20-year government-enforced time limit on patents imposes a long monopoly for the patent holder and does not promote the arts and sciences, as the Constitution of the United States says it should: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Reference 3).
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Contrary to what you might think, patent laws are not in place to help the little guy; they exist to concentrate power in multinational corporations. I’m not saying that you shouldn’t be able to get a patent. I’m just saying that, if the Constitution authorizes patents to promote the arts, then the term should be closer to one year than to 20 years. This fact should be obvious to anyone who has kept track of modern technology. The Betamax-versus-VHS videotape battle happened because each company had patents that it wanted to incorporate into the next world standard. We have seen a rehash of this scenario in the Blu-ray-versus-HD-DVD (high-definition-digital-video-recorder) battle, which companies are fighting not to benefit consumers but to reap the monopoly of profits from the suite of patents in the systems. In another example, we are soon going to be converting to a needlessly complex and outmoded digital-TV standard that is subject to interference because those who conspired to shove it down our throats were interested not in giving us the best technology but instead in tying up the scheme with their patents so that they can make licensing revenue for 20 years.
One of the biggest problems with the patent system is that it forces the government to pick a winner, and the winner takes all. It is proper to credit a Texas Instruments employee, the late Jack Kilby, with important contributions to the integrated circuit. But the late silicon-transistor pioneer and Fairchild co-founder, Jean Hoerni, and the late Bob Noyce, co-founder of both Fairchild and Intel, made contributions just as essential as Kilby’s to the modern IC.
The US patent system was broken from the start, if only because we emulated the British system, as the Watt story so superbly demonstrates. If we want to boost the economy and make a lot of jobs for engineers, the best thing we could do is severely limit the terms of patents and make them more difficult to obtain.
Contact me at paul.rako@edn.com.
References
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Boldrin, Michele, and David K Levine, Against Intellectual Monopoly.
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Titus, Jon, “Invalidate Lemelson’s patents,” Test & Measurement World, July 2001.
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Morris, Gouverneur, James Madison, et al, Constitution of the United States of America, Article 1, Section 8, Clause 8.
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It sounds like you are advocating eliminating the patent concept all together. That doesn't sound like an improvement.
M Grierson - 2009-5-4 17:58:00 PDT -
The US patent system is indeed flawed, as are the patent systems throughout the world. However, to assume the flaws stem from the the beginning, or from the British system, is incorrect. Many of the flaws have been inserted throughout the past several decades, while other flaws stem from the sheer vastness of the undertaking of a patent system and the exponential acceleration of technological advancement. Jefferson actually did a pretty decent job at the beginning, and patents underwent a more thorough examination then (in terms of examination, not in terms of prior published art) and were more difficult to obtain. However, as exemplified in Jefferson''s time, and as is more amplified today, swinging from one end of the spectrum (supposed ease of obtaining patent rights and exclusionary/licensing benefits) to the other (supposed difficulty in obtaining patents and extremely short exclusionary terms) does not and can not work either. In many art areas, patents are already unnecessarily difficult to obtain, and patent offices around the world are clogged with millions of ridiculous applications that they still have a duty to examine. Technology today is, in many areas, more difficult and educationally intensive, and finding and paying for the manpower to examine these applications (based on both technological and legal analyses) is a formidable undertaking even in the current system. Such short terms (as the author proposes) would likely mean a 20-fold increase in applications (where some arts have examining backlogs of up to 8 years already). There is also the possibility that many companies would decide that patents are no longer worth their while, ending forced publication of innovation, and the subsequent advancement of technology for which the patent system was designed. Technological advancement would be halted by such secrecy, thereby stifling the possibility of increased jobs. And what about art areas like biotechnology and new pharmaceuticals? It can take 20 years and billions of dollars to create a new drug, not to mention the costs of clinical trials and FDA approval. A 1-year patent term would never EVER entice companies to make new drugs (goodbye research and healthcare jobs, oh, and anyone who has a health problem), because there is no possible way they could pay for all of that research when the generics can take over after 1 year. Is the patent system broken? Yes. Should we consider adjusting statutory patent terms? Maybe. Can we slap a 1-year one-size-fits-all patent term across all art areas? No. Is fixing the patent system going to fix the economy? Probably not. Although patent systems eventually impact economies slightly, it will be years before effects of any policy changes eventually trickle down through the system to the corporations, consumers, and our overall economy. I don''t want to wait years for a POSSIBLE improved economy and I certainly don''t want to rush difficult policy decisions for a system as complicated as patents. The risks of damages to future economies and technological advancement caused by impulsive legislation by those who struggle to grasp the concept of a patent system far outweigh the benefits of any rushed legislation. By the way, it wasn''t the patent system that caused the recession.
Anonymous - 2009-10-3 14:41:00 PDT -
High Definition Digital VERSATILE Disc
Anne Pedantic - 2009-10-3 08:51:00 PDT -
HD-DVD is High-Definition-digital-video-disc (not recorder, as stated in the article)
Alexander Mozgovenko - 2009-10-3 04:46:00 PDT -
There are some problems with patents but overall they are very positive to the system. Patents were an essential part of UK developing faster than other European countries and not the opposite as your column suggests. They promote invention because they give a monopoly on the invention. The only legal monopoly a company can get. That way the company can get back the money they invested in the first place plus benefits. They also force other companies to research harder because they have to get around the patent.
A one year patent would be too short as products do not usually make money during the first year and may take up to three years to recover the investment.
You may as well compare how the protection for engineering inventions compare to that of music or arts. In Europe it is very clear who is the winner: 20 years for technical ideas and +70 years for a piece of music or a novel. Maybe we should start lowering the lime for arts first.
Jose Tejada - 2009-9-3 01:53:00 PDT
