Thursday, September 02, 2010

The case against "a case against patents"

When IPBiz saw the IAM headline Making the case for patents by making a case against them, there was a guess that the story had something to do with the Paul Allen lawsuit, and, indeed, there is mention of same in the first sentence. [On the Paul Allen matter, see also
Idiocy amok at Techdirt?

However, the IAM post is really about an article by Christopher F. Marki titled A Case Against Patents .
Marki's four arguments against patents were:

1. Patents create a false sense of security.
2. Trade secrets are more important than patents.
3. Would you really sue over patent infringement?
4. A patent is NOT a product.

Within Marki's bio is mention of a Ph.D. in optics and the text:
Following graduate school, Christopher decided to forego a life in Photonics

On a "photonics" theme, IPBiz would like to address first a point made in Marki's third argument:
In other words, you don’t patent something so you can sue someone when they violate it, you patent something so they can’t sue you when they try to steal your idea by patenting it themselves.
Right here in New Jersey, there was a small company that had LED Christmas lights as a product. They did not patent
the product per se, but did get a US patent on some of the circuitry. Their product was actually made in China. It came to pass that one of their Chinese manufacturers got a Chinese patent on their product, and, well, you can guess what happened then. This horror story was discussed in a 2005 IPBiz post Patent litigation in China: a Christmas Less Bright?. As a general matter, first year patent class teaches the downsides of keeping something a trade secret when your competitor turns around and patents it. You are really out of luck.

Of Marki's first argument, one might ask the Wright Brothers. A patent was all they had in their fight against Glenn Curtiss.
Yes, they did have to litigate. Or, one could ask Chester Carlson. No one litigated his patents. And, note that NOT every drug patent is litigated under Hatch-Waxman.
Of the Wright saga, see previous IPBiz posts:

Patent thickets and the Wright Brothers

Do patents tend to harm inventors?--part 3

Joff Wild had hammered one obvious defect in Marki's piece, the failure to recognize that patents are beneficial to society as a whole because they make knowledge available. Joff noted: Could there actually be a better case made for patents than this one from the coalface ? Here we have patents doing precisely what they were designed to do. How good is that? But for the Wright's patent, Glenn Curtiss would have been selling real estate from a motorcycle.

From the perspective of society, we want information freely available. The idea that --Trade secrets are more important than patents.-- returns us to the age of the guild.

Of Marki's fourth point, one observes that invention is not innovation. Some inventors can innovate, some can't. That's why we have patents. The patent gives the inventor the ability to negotiate with someone who can innovate. Back in the Civil War, Spencer sold his patent rights to the repeating rifle to a group that could get the repeating rifle into use. Nothing wrong with that. Marki had written:
Ultimately, the end game is to sell their ideas and corresponding IP for a huge lump sum and retire happy. I have found that many smart scientists use this strategy when they form start-up companies. Just because some people don't understand how patents work in the marketplace is NOT an argument against patents!

Of Marki's text --a low probability of success. --, the history of Xerox illustrates two sides of the invention/innovation story.
Carlson had a brilliant invention, but had difficulty convincing anyone that it would change the way we live. He had a low probability of success, but, against long odds, succeeded. His later company, Xerox, had brilliant inventions, but had no one with a vision of how they would be commercially implemented. They were indeed implemented, by other companies.


Post a Comment

<< Home