Sunday, March 30, 2008

No need for patents to give incentives?

In Now there you go again, LBE wrote

Strandburg et al. [21 Berkeley Tech. L.J. 1293] have relied on the research of Bessen and Meurer to state: Empirical evidence increasingly raises questions as to the extent to which patents are needed to provide incentives for research and development. [footnote 65: See, e.g., James Bessen & Michael J. Meurer, Lessons for Patent Policy from Empirical Research on Patent Litigation, 9 Lewis & Clark L. Rev. 1, 6-8 (2005) (reviewing empirical evidence for the relatively small size of the "patent premium")]

One sees a similar theme in a guest post by Michael Martin on PatentHawk on 24 August 2007 titled Bifurcate the Patent System?
wherein there is text:

Some new technologies get developed without the extra incentive of patents. For these "fully-incented" technologies, the patent system can be more like a tax than a credit. In the worst case scenario, the inventor who already had incentives to develop new technology does not apply for patents, but then has to pay the other later inventors or copyists whose only incentive was patents.

Curiously, one day earlier, on 23 August 2007, Michael Martin had written on PatentHawk

Prof. Lemley never claimed that Gary Boone invented the integrated circuit. Rather Lemley claimed that the technology that in Boone's patent, titled "Single Chip Integrated Circuit Computer Architecture" was not caught up in a patent thicket in part because the Hyatt v. Boone interference proceeding went on for so long.

I'm sure it would have been more precise to call what Boone and Hyatt were fighting over something else, but it was really a research assistant's mistake rather than a substantive error by Lemley.

to which a response was made:

Michael Martin states that Prof. Lemley never claimed that Gary Boone invented the integrated circuit. For reference:

Mark A. Lemley, Patenting Nanotechnology, 58 Stan. L. Rev. 601, 611-612 (2005):

The integrated circuit was itself an improvement in the field of computing, a way of building transistors (an invention discussed above) [p. 612] directly into a computer chip by using charged silicon, a semiconductor. The invention opened up not just computing but also calculators, cell phones, and a host of other portable electronic devices. But because two different inventors working independently developed the integrated circuit at about the same time (1971), the patents were put into interference. Gary Boone was ultimately declared the winner, but not until 1999, twenty-eight years after the first patent application was filed.

Hard to believe Michael Martin on either point.

[UPDATE. IPBiz has aleady received a comment, which unfortunately accepted what Lemley (and Martin) wrote as being the truth: but I had no idea the integrated circuit was as late as 1971!. No, what Lemley wrote in the Stanford Law Review in 2005 is FALSE, and remains uncorrected by the Stanford Law Review. One can obtain some of the TRUTH of the matter from the 2005 post on IPBiz titled Noyce v. Kilby. The REAL case on integrated circuits was Noyce v. Kilby, 416 F.2d 1391, 163 U.S.P.Q. 550 (CCPA 1969), and addressed issues in the filing of the '602 application in the year 1959.

In terms of the issues of incentives, what incentive can we offer to Lemley (patent advisor to Obama) to tell the truth?

See also

Did Mark Lemley name Gary Boone as the inventor of the integrated circuit?

Of some earlier material on Bessen:

Do patents tend to harm inventors?--part 3


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