We've pointed out in the past why it doesn't make much sense to treat "intellectual property" as "regular property," since it ignores some very important differences between the two. James Bessen and Michael Meurer, who wrote the recent book Patent Failure have always taken a slightly different approach. While they agree with us that the patent system tends to do more harm than good (and they've got a ton of research to back that up), they claim that the problem is that patents don't act enough like property. They say the problem is that the "fuzzy boundaries" around patents mean that there aren't clear rules or "fences" as with real property. So, their prescription is to look for ways to treat patents more like real property.
Eric Goldman points us to a recent paper by well known law professor and patent system expert Mark Lemley on why it's a good thing that patents aren't treated more like property. Lemley is mostly a patent system supporter, but (unlike some around here) he appears to recognize that the system could be improved, and seems open to evidence concerning where the patent system does more harm than good.
A ton of research? What are you smoking Mike?
How was Lemley supporting the patent system in Ending Abuse? The paper in question is an SSRN piece titled Ignoring Patents, which abstract notes:
The answer, I think, is quite simple: both researchers and companies in component industries simply ignore patents. Virtually everyone does it. They do it at all stages of endeavor. From the perspective of an outsider to the patent system, this is a remarkable fact. And yet it may be what prevents the patent system from crushing innovation in component industries like IT. Ignoring patents, then, may be a "workaround" that allows the innovation system to function in the face of overbroad patent protection.
IPBiz: yes, re-inventing the wheel is a great way for innovation to function [?]
From a post by Dan Slater, about Mark Lemley and the case with Internet Services:
Internet Services said that Immersion had given it the right to enforce its patents, and that Immersion’s suit against Sony stepped on those enforcement rights.
Though not a typical Keker case, KVN’s Mark Lemley told the Recorder that they took it in part because it presented a novel legal question: What kind of standing does an exclusive licensee have in a patent infringement case?
Unfortunately, things have not gone well for Lemley & Co. It lost in both the California district court and the Federal Circuit, which ruled last year that Internet Services had no standing in the Sony patent case, though it left the door open for a breach of contract dispute with Immersion.
Though the case was kicked back to the district court, the Keker lawyers wanted out, partly because of a dispute with a friendly witness in the case, a porn-industry attorney named Gregory Piccionelli. The Keker lawyers cited a conflict of interest and a breakdown of the attorney-client privilege, and said it could no longer represent Internet Services. The client fought the withdrawal motion, but Keker prevailed in June.
So how does Lemley feel about having taken the case? Lemley said he has no regrets, even if the subject matter may seem less refined than the Keker firm is used to. “My view is, those sorts of patent issues are sort of interesting issues no matter who raises them,” Lemley said.
In passing, see
"Trolling is basically Internet eugenics... from the blog of Ann Althouse