Monday, April 12, 2010

Promoting independent invention is wasteful

In a post titled Economist Assumes That The Problem Is 'Thieves' Rather Than Bad Patent Laws , Mike Masnick at TechDirt attacks Pat Choate for not having a clue how innovation actually works.

Masnick brings up the concept of an "independent invention" defense to patent infringement, showing Masnick doesn't have a clue how patent law works. The deal in patent law is a simple quid pro quo: the inventor tells the public what his invention is and how it works and, in return, gets a right to exclude (not a monopoly right) for a limited time. The invention is supposed to be novel, nonobvious, and useful. By making the invention public, the inventor is advancing knowledge and people ARE SUPPOSED to read the patent.

Masnick writes: It's almost always independent invention . Gee, Mike, re-inventing the wheel is what we are trying to avoid here. And you want to give somebody a "free pass" for re-inventing what is already known?

The patent law is strict liability. If someone does something or makes something that falls within the scope of a claim, it's infringement whether there is knowledge of the claim or not. That's an incentive to read the known literature, not to re-invent it.

Sometimes people take things. Contemplate the Sticklen matter.

See also [ "The copying author Mariam Sticklen has been found to have plagiarized by taking an article, which was sent to her for review for the journal Plant Science (and ultimately published in the Feb. 2010 issue of Plant Science), extracting an idea from that article, and inserting it into her own 2008 paper in Nature Reviews Genetics (volume 9, June 2008, page 433)."]


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