Today's Date: April 17, 2014 Search | Home | Contact | Services | Patent Attorney | Patent Search | Provisional Patent Application | Patent Application | Software Patent | Confidentiality Agreements

The Myth of the Sole Inventor

Written by Mark Lemley
Professor of Law, Stanford University
Founding Partner, Durie Tangri
Posted: September 11, 2011 @ 11:53 pm
Tell A Friend!


The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. We deny patents on inventions that are “obvious” to ordinarily innovative scientists in the field. Our goal is to encourage extraordinary inventions – those that we wouldn’t expect to get without the incentive of a patent.

The canonical story of the lone genius inventor is largely a myth. Edison didn’t invent the light bulb; he found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of U.S. Reports resolving the question of whether Bell could have a patent despite the fact that he hadn’t actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk, but their plane didn’t work very well, and was quickly surpassed by aircraft built by Glenn Curtis and others – planes that the Wrights delayed by over a decade with patent lawsuits.

The point can be made more general: surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often “in the air,” or result from changes in market demand or the availability of new or cheaper starting materials. And in the few circumstances where that is not true – where inventions truly are “singletons” – it is often because of an accident or error in the experiment rather than a conscious effort to invent.

The result is a real problem for classic theories of patent law. If we are supposed to be encouraging only inventions that others in the field couldn’t have made, we should be paying a lot more attention than we currently do to simultaneous invention. We should issuing very few patents – surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention. Put simply, our dominant theory of patent law doesn’t seem to explain the way we actually implement that law.

Maybe the problem is not with our current patent law, but with our current patent theory. But the dominant alternative theories of patent law don’t do much better. Prospect theory – under which we give patents early to one company so it can control research and development – makes little sense in a world in which ideas are in the air, likely to be happened upon by numerous inventors at about the same time. And commercialization theory, which hypothesizes that we grant patents in order to encourage not invention but product development, seems to founder on a related historical fact: most first inventors turn out to be lousy commercializers who end up delaying implementation of the invention by exercising their rights.

If patent law in its current form can be saved, we need an alternative justification for granting patents even in circumstances of near-simultaneous invention. In my forthcoming article in the Michigan Law Review I consider two other possibilities. First, patent rights encourage patent races, and that might actually be a good thing. Second, patents might facilitate markets for technology. Both have some logic to them, but neither fully justifies patent law in its current form.

While patents don‘t seem to be encouraging the development of discrete new ideas that no one else has, that doesn‘t mean they aren‘t motivating innovation at all. Rather, it means that the simple incentive-to-invent story must be complicated by the presence of competitors working to achieve the same invention at roughly the same time. Granting a patent to the first to achieve that goal doesn‘t just encourage one entrant; it may have a more complex set of incentives on different participants depending on how they perceive themselves relative to their competitors. The incentives provided by a patent, in other words, must be filtered through the realities of a patent race.

Racing theory may or may not be the answer we are looking for; there is some reason to think that there is no one unified theory that explains all of patent law. But at a minimum, it is a partial explanation for how patents might fit into the innovation puzzle, one based on evidence about how patents seem to work in the real world. And even a partial explanation is better than what we have right now.


About the Author

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School, the Director of the Stanford Program in Law, Science and Technology, and the Director of Stanford's LLM Program in Law, Science and Technology. He teaches intellectual property, computer and Internet law, patent law, and antitrust. He is the author of seven books and well over 100 articles (and counting) on these and related subjects, including the two-volume treatise IP and Antitrust. Professor Lemley is also a founding partner in Durie Tangri, a law firm specializing in high-tech and intellectual property matters, located in San Francisco, California.

56 comments
Leave a comment »

  1. I don’t see a disussion of disclosure theory – that patents encourage dissemination of information that would otherwise not be dissemtinated widely or in user-friendly format (and thus ease market entry, design around, and improvement). Perhaps that’s somehow addressed in “market theory” or “race theory”? I guess maybe I just don’t understand the longhand behind each theory?

    And if you’re looking for hostile critiques of your work, I think you’ve posted in the correct place, Professor.

  2. We deny patents on inventions that are “obvious” to ordinarily innovative scientists in the field. Our goal is to encourage extraordinary inventions – those that we wouldn’t expect to get without the incentive of a patent.

    Welcome back, Flash of Genius.

    I need to read no further than the cannards of “extraordinary invention” and “wouldn’t expect to get without the incentive” to excuse myself in order to retrieve my hipwaders. Truly a PHD effort here (and that is not a good thing).

  3. The point of the patent system is not to “reward a flash of genius,” but to make public the works of researchers rather than to have large corporations keep their innovations secret. That is the problem with software inventions, IBM has filed 1,000′s of junk patent without disclosing the inventions. Becuase software is currently having problems with the patent system is no reason to trash a system that has worked and encouraged many, especially in areas outside software, to disclose their inventions to the public. Software patent quality should and will continue to improve especially if software engineers participate in the patent system instead of denying it’s existence. IF the software community really wants to rail against the system, simply make more information available to the patent office. The easiest way to defeat bad software patents would be to create a SEARCHABLE database of software methods.

  4. The presence of the patent system also helps create a culture that invents. Aboriginal tribes do not have patents or anything like them and do not innovate very often. A member of their population may stumble onto some change in materials or practices that provide a benefit that they recognize and they adopt as routine. But that requires the “stumbling upon” or serendipitiy that Lemley infers is the indicia of invention.

    If we adopt the “stumbling upon” or serendipitiy test for invention, we can expect the technological stagnation of aboriginal cultures.

  5. American Cowboy,

    The “problem” other than having the “stumbling upon” mantra (or the Flash of Genius, which is just a different type of “stumbling upon”) is that you run the risk of everyday business desiring and pursuing patents and thus introduce the “patents as property” problems that are inherent and (ahem) obivous to all good socialist-thinking academia that in their heart of hearts view all personal property as problematic.

  6. BD-

    I’ll admit that I am troubled by the talk of “extraordinary inventions.” That does sound like flash of creative genius, but I don’t think that is what Lemley is getting at. The idea is that if the invention would have occurred anyway then why should we have a patent system that provides a reward?

    I don’t know whether you read his entire article. This is only an executive summary. I do recommend his entire article. I think if you read the entire thing you are left with the the understanding that there are many reasons why having a patent system and issuing patents fosters innovation. It isn’t as simple as saying that if it would have happened anyway no patent should be issued. When he talks about the race theory he seems to say that the fact that people want patents, for whatever reason, forces them to move with speed to attempt to secure rights. Thus, by having a patent system people continually move faster to develop and discover than they would without having a patent system. Because we know that inventors stand on the shoulders of those who come before them in most cases, the introduction of speed into the system allows for faster progress than would otherwise occur.

    Personally, what Lemley writes makes a lot of sense to me. He acknowledges there are many reasons why people want patents and a lot of possible theories that support a patent system and issuing patents, but none that alone seem sufficient to justify what we see in the marketplace. He concludes that a cohesive, unified theory may be impossible.

    I see this article as a pro-patent, pro-innovation article. Of course, there are places where one could rightfully worry… and flash of creative genius is certainly a bridge we don’t want to cross, although it seems the Supreme Court and at least some panels of the Federal Circuit are pushing us to cross.

    -Gene

  7. Wow, “surveys of hundreds of new significant technologies”, but no footnote to a citation?

  8. BD,
    Even Giles Rich acknowledges in The Principles of Patentability that we shouldn’t give patents to the ordinary inventions brought by “the expected skill of ordinary workers in the arts” that “will be made anyway, without the ‘fuel of interest’ the patent system supplies.” You may object to where the line for obviousness is drawn, but ‘extraordinary’ can be used to simply mean beyond what is ordinary, which means it’s a fairly unassuming adjective, and that seems to me to be what Lemly is using it for here. The problem to have with ‘flash of genius’ is not that a line is being drawn to separate that which deserves a patent from that which does not in regards to how obvious or ordinary an invention. The concerns would be much more specific with ‘flash’ and ‘genius.’ A flash rule would mean that someone who invents something after hitting their head on a bathroom sink would get a patent, while someone who found ten thousand ways that didn’t work before creating an invention would not get a patent, even if both inventions are equal in obviousness. The other concern would be genius, as that sets the bar for obviousness at a certain height (albeit still a fairly vague height), and that height might be too high for an optimal patent system.

    American Cowboy,
    Your comparison to aboriginal tribes has a major failing, in that those societies have many, many differences between itself and say, the US. Without at least some control for countless other variables that undeniably affect the amount of innovation a society produces, the comparison between the two has no real meaning. Getting good, controlled results is quite tough, but your example doesn’t even make a decent attempt.

  9. Bobby, I agree that there are lots of other variables, but you are never going to exclude them altogether. In addition to aboriginal tribes, communist regimes, medieval and mercantilist economies that did not reward invention got little of it.

    My point is that the culture of innovation is strong in the US because we have 220 years of history of having effective patent protection. The national character is imbued with it. Often when I am introduced to someone socially and they learn that I am a patent attorney, they immediately respond with something like “I wish I had invented something.” And I live in flyover country. I bet that is even more true in Silicon Valley where Mr. Lemley goes to cocktail parties.

    But I bet you don’t get that reaction in many parts of the world.

    .

  10. The level of innovation from each of those mentioned is going to be quite different. I wouldn’t be surprised if communist regimes actually had more invention than the US did for at least the early parts of 220 years. Most regimes that would be labeled as communist lived in societies that were much more technologically advanced than 18th century America, mostly by virtue of not being in the 18th century. Having technology, particularly telecommunications technology, is a huge positive factor in being able to invent more easily. The Soviet Union, which is likely your primary example for communists, also engaged in rather fierce competition with the United States and western societies in general. Said competitions, like the space race, would mean more resources would be devoted to innovating than what would otherwise happen.

    There’s also the issue that all of the aforementioned countries have different underlying economic systems than capitalist systems, which I think most people would agree results in a large difference in the amount of innovation to an extent that without some kind of adjustment for other factors, any comparison between the two would be totally pointless. The proper point of comparison would be between countries that have similar economic systems outside of patents.

    The reality is that despite wishes to the contrary, the economics of patents are a very complex matter that doesn’t have nice, easy answers to point to, even with the assumption of a sole inventor. Without that assumption, it becomes even more complex to try and understand. There are a number of positive and negative factors, and pretending that it’s very simple is insulting.

  11. Gene,

    I will read Professor Lemley’s article (and even atttempt to do so with an open mind).

    It will be difficult.

    In part, because the bias is deep within Lemley, and I have a natural aversion to that type of bias.

    To wit:

    The result is a real problem for classic theories of patent law. If we are supposed to be encouraging only inventions that others in the field couldn’t have made, we should be paying a lot more attention than we currently do to simultaneous invention. We should issuing very few patents – surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention. Put simply, our dominant theory of patent law doesn’t seem to explain the way we actually implement that law.

    The problem of course is that Lemley does not get the dominant theory of patent law correct. There is nothing in patent law that drives towards either “We should be issuing very few patents” nor “we should be denying patents on a vast majority of the most important inventions [due to closeness of application date]” The problem is in how Lemley understands what the dominant theory of patent law to be. The Cannard of “but for a patent” is one of the biggest lies of the anti-patent folk, becuase it places an artifical and false construct into patent law theory that does not belong there. In Lemley, these misconceptions suffuse his writing.

  12. Bobby, capitalism without a patent system will eventually treat all products like commodities, where profit margins are so slim you invite State intervention to protect the producers (like the farm lobby).

    If I innovate to day and face your copy in the market tomorrow, what’s the point of innovating?

  13. “If I innovate to day and face your copy in the market tomorrow, what’s the point of innovating?”
    At the very least, a one day head start. There’s also the impracticality of copying all ideas right away. A business intending to copy someone else to make a profit can only copy so much, and would have to sort the ideas worth copying from the ideas not worth copying. That often means that an idea won’t be copied until it has already proven some success, which means that the innovator has an even bigger head start in practice.

    There’s also the fact the concern of blocking as a disincentive for innovation. If three parties would have innovated at roughly the same time (which Lemly is pointing to as the kind of behavior that is the norm, not the exception), two would be blocked by the one that got the patent, making it a positive result for the one and negative result for the two. If there are three parties with roughly equivalent chances of getting the patent on something, then it becomes a gamble with the odds of a favorable outcome at half the odds of an unfavorable outcome, and odds being even lower with more parties simultaneously inventing. That makes inventing riskier with a potentially higher reward. The exact effects would again be hard to nail down, but it doesn’t seem unreasonable to suggest that a lower risk option with less potential reward (that the three companies developing the same invention at about the same time would give) may be favorable.

  14. “If three parties would have innovated at roughly the same time (which Lemly is pointing to as the kind of behavior that is the norm, not the exception), ”

    My experience is that that is the exception, not the norm.

    How about it, Watchdog fans, do you find three independent inventive entities coming up with the same invention at roughly the same time to be the norm or the exception?

  15. Just to clarify, I don’t think specifically three inventors is the norm, but rather that independent invention is the norm. I picked three inventors because it’s often nice to have a number to deal with, and it’s a fairly conservative number, as the only lower I could go would be two. Also, your own personal experiences and even the experiences or other commenters don’t make a particularly representative sample, but the article said that:
    “surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other.”

  16. Innovations are often followed by “Me too” innovations that continually evolve the leading edge of technology. For example, I improve the single bladed razor with a double bladed razor, the double with a triple, … until the current trend is a 5-6 bladed razor with glide strips and smoother shaving. Each is incrementally better than the last, just as Edison’s light bulb is superior and led to commercially viable electric light bulbs (I know, I’m a vicitm of patent spin).

    The point of the patent system, and what has been successful for so many years, is he public availability of those inventions for the next “Me too” to come along. Without the patent system, innovation would be locked inside the company vault, there would be a limited amount of base inventions to improve apon. Some products, like razors could be reverse engineered (although manufacturing processes may be more elusive). Other products would not be easily reverse engineered, we would be dependent on Universities to provide ‘cutting edge’ technology. There would be no technology front to advance. If you made patents more difficult to obtain (i.e. only 10% patent grant) most people would resort to trade secrets. Again, there would be no technology front to advance.

    Lemley is mad because his high-tech software clients are having a hard time with patents. They hide the true innovations in their software inventions, sell only compiled software without the underlying code, customers are never informed of the methods they use. They never publicly disclose all of the software inventions, they keep them behind “proprietary” (i.e. trade secret) software systems and then get angry when someone independently ‘invents’ a similar innovation. The independent inventor can then legally get a patent because the “proprietary” methods were never disclosed to the public.

    Develop an OPEN SOURCE database of existing software ‘art’ for the USPTO to use against pending patent applications and you will dramatically reduce the number of bad patents. The USPTO cannot find proprietary software and cannot cite it against pending patent applications under the current system. NCBI worked wonders for biological sequences, a similar database for software would be a useful tool and would kill the bad software patents. It is not the USPTO’s fault that much of the prior art software is not publicly available.

  17. Bobby-

    I think the question is what it means to have new technologies invented simultaneously or nearly simultaneously. Would you say that the iPad and subsequent Motorola devices, for example, were invented nearly simultaneously? That would be a true statement, of course, but the simultaneous nature is due to the fact that Motorola copied the iPad, not because there were simultaneously independent conceptions.

    While you can always point to some situations where there have been nearly simultaneous conceptions that is indeed quite rare. All one has to do is look to the Interference statistics from the USPTO to see that a statistically miniscule number of simultaneous conceptions occur in any given year.

    -Gene

  18. “Interferences? What are they? Sound like something out of the 18th Century.”
    -Bigwigs of the AIPLA

  19. “And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention.”

    Any evidence for this besides a couple anecdotes that you threw out??????

    Also, you have “redefined” what is meant to be an invention inconsistent with how it is used in the patent statutes. Let’s review 35 USC 101: ” Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Note the term “improvements thereof.” Improvements constitute inventions.

    “are ‘obvious’ to ordinarily innovative scientists in the field.”
    I see you bought that BS line proffered by SCOTUS in KSR. The ordinary engineer/scientist/one skilled in the art is NOT innovative. I’ve been there and seen it. The average Joe/Jane doesn’t want to rock the boat – they just want to put their hours in and go home.

    “If we are supposed to be encouraging only inventions that others in the field couldn’t have made”
    Why would we do that? The standard is new and useful – not impossible for everybody else. Who is proposing that theory of patent law?

    “Prospect theory – under which we give patents early to one company so it can control research and development”
    Who is proposing that theory? It certainly doesn’t jive with reality – which is that many business are ignorant of patents until that oops moment – oops, I infringed somebody else’s patents or oops, I have this great product, which I could have patented but didn’t, and now everybody is copying my invention and I’m left out in the cold. Regardless, once an idea is out there, people are going to improve upon it regardless of the patents protecting it.

    “If patent law in its current form can be saved”
    From who are we saving it? Patent law professors with undergraduate degrees in economics – like the guy who just posted a whooper on patenty-o?

    FYI – I don’t disagree with that the race to the patent office is important because it incentivizes early patent disclosure. Also, patents facilitating markets for technology (e.g., as collateral for obtaining investment capital).

    “there is some reason to think that there is no one unified theory that explains all of patent law.”
    Correct – we don’t need a fundamental rationale that ties everything in together. We are talking about incentivizing human/corporate behavior, not explaining how gravity works. Certain incentives will work with certain people/businesses and others won’t. Some people are altruistic and don’t need incentives to share their technology. However, the communists (the true communists, not the in-name-only communists) found that founding a society based upon altruism doesn’t work very well.

    Oh … one last thought? Now that you’ve developed a couple of new theories on patent theory, what does it give us?

  20. “At the very least, a one day head start. There’s also the impracticality of copying all ideas right away. A business intending to copy someone else to make a profit can only copy so much, and would have to sort the ideas worth copying from the ideas not worth copying.”
    What if innovating costs 100,000 times the cost of copying? That 1 day isn’t going to give me much incentive.

    The copiers just lets the market decide what to copy and what not to copy. In the end, the riches won’t go to the best innovator. Instead, the riches will go to the best marketers/copiers/sellers. I would rather the riches go the best innovators.

    “If three parties would have innovated at roughly the same time (which Lemly is pointing to as the kind of behavior that is the norm, not the exception”
    Except I haven’t seen any good studies to back up those assertions.

    “If there are three parties with roughly equivalent chances of getting the patent on something, then it becomes a gamble with the odds of a favorable outcome at half the odds of an unfavorable outcome.”
    No … the better engineering team will likely win. Also, the party that spends more on R&D will likely win. Also, the three parties aren’t looking to develop the SAME product — they are innovating to solve the SAME problem. Moreover, the manner by which the solve the same problem may differ, which is a benefit to everybody even though one party may get a patent on some base technology and the other two may get patents on improvements to the base technology. What happens next (if the parties are looking to maximize their own revenue) is cross-licensing deals in which everybody is a winner.

  21. AC-

    You are a funny guy! Gotta love patent humor! Thanks for the smile.

    -Gene

  22. I have been hanging around the patent system for close to 35 years now and it is only in the last 5-10 years that I have heard any of this business about patents “as a disincentive for innovation.” Have patents changed? Has innovation changed? Have infringers simply come up with a new way to bash patents so they can free-ride on the fellow who got there first?

    My impression is that it is the third of these, but I am open minded enough to listen to facts and argument on behalf of the first two. ….Bobby, Prof. Lemley?

  23. Gene,

    I tried, really tried.

    I got through the first sentence of the abstract (after vomitting three times).

    Let’s take a look:
    The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented.

    Uggh…

    OK, I’m back after number four.

    Sorry Gene, but this lead in sentence is so full of crock and bias as to warrant going no further.

    The theory – “The? as in the most important one, as in the critical one, as in the only one that matters? – More like, as in The Strawman setup.

    The theory of patent law” – as if “patent law” requires a theory to allow it to be? Get the hipwaders – we are going into the Pile High and Deep on this one. Get ready for someserious academic wanking, where law is necessitated and requires a “theory” in order to be “legitimate.”

    based on the idea” – strawman setup continues…

    that a lone” – where did this strawman come from? Who ever premised that invention ever had to be “lone”?

    genius” – I know some think it takes a village, others simply let lose with the Freudian slip that it takes a Genius. “Flash of genius” anyone?

    only if” – A critical canard. If the debate can be manipulated into the patent system only being reasonable for only those inventions that would not otherwise be pursued, the scope and quantity of property to be “doled” out would be drastically constrained. This ignores the actuality of patent law and is a gross perversion. Patents are to promote the progress – a relative term, not an absolute one – there is no caveat of “…only where otherwise invention would not be pursued.” The plain and simple fact of the matter is that innovation is neither linear nor predictable. No one can know a priori which minor “advance” or wrinkle or alternate will be combined with another seemingly innocuous, even trivial “advance” or wrinkle or alternate to yield a supremely breakthrough accomplishment. This is why there is no requirement that an invention must be better than all existing items (the false “Genius” dogma). In fact, the item worth a patent can be worse than known items! Such a one is no less worthy of a patent than a Nobel Prize level in the eyes of the law, because no one can tell if that Nobel Prize is a culminating dead end while the seemingly worse method shifts an entire quantum field view change and enables others to stand on those shoulders to advance further.

    If Lemley wants to be taken seriously, he needs to check his bias at the door.

  24. Gene,
    You point to the iPad and Motorola tablet devices, but those aren’t really inventions in the sense that’s relevant here. Apple doesn’t have a patent on the iPad itself, but rather on various things that happen within the iPad. However, going with your example, it’s probably worth noting that at CES 2010, a few weeks before the iPad was unveiled, a number of tablets were publicly shown. The focus seemed to be driven by rumors of an Apple tablet, but there weren’t really any specifics known to the public. So while the interest in tablets may have been driven by Apple, the implementation of those tablets would have to be independent because the iPad was not publicly known at that point.

    “What if innovating costs 100,000 times the cost of copying? That 1 day isn’t going to give me much incentive.”
    You are taking AC’s point far too literally. And really, you guys need to get a story straight on what the typical strength of trade secrets are. I understand it can vary quite a bit, but they can’t result in a much greater disclosure of information if competitors will almost immediately be able to copy them. I recall quite a few surveys generally ranking being the first to market as the most important factor, with patents being ranked as less important. The only exception that comes to mind being the pharmaceutical industry, which I’ve routinely said has enough differences, particularly with FDA regulation, to be pretty much a different case that should be argued on its own. So, if being the first to market is the most important element to a business, it seems that it would be a pretty adequate advantage.

    “The copiers just lets the market decide what to copy and what not to copy. In the end, the riches won’t go to the best innovator. Instead, the riches will go to the best marketers/copiers/sellers. I would rather the riches go the best innovators.”
    The riches generally won’t go to the best innovators. That is going to be true with or without patents. The best you can hope for is that patents sweeten the odds a bit for inventors, and I remain unconvinced on that matter.

    “No … the better engineering team will likely win. Also, the party that spends more on R&D will likely win. Also, the three parties aren’t looking to develop the SAME product”
    So, if you completely ignore the given conditions of the hypothetical, the results are different. That’s wonderful, and you get a gold star for effort. Now, please actually address the hypothetical. I was kind enough to make it fairly favorable odds, qualify that in reality it’s not going to be exactly equal odds for all parties by saying the odds are roughly equal, and ignore the likelihood that the party with the best knowledge of how to game the system will be the one to get a patent.

    As for the arguments being new to you, it may be that a greater amount of people are chiming in on patent and copyright matters, a greater amount of people are able to get their voices heard by more people, and a greater amount of discussion within different groups of people is breeding more ideas. Your choice of the words ‘free-riding’ did bring a smile to my face, as Lemly wrote an excellent paper in which ‘free-riding’ is a major topic.

  25. AC-

    I think you are right about the disincentive just being a new argument that justifies laziness (i.e., free riding). What I will say, however, is that those who have an anti-patent agenda are able to point to some really bad software and business method patents form the late 1990s and early 2000s, before it became vitually impossible to get anything useful through the PTO. So we all know that what Senator Schumer said on the floor of the Senate about the USPTO giving away business method patents like they are candy is factually incorrect. But if you focus on a brief window of time about 12 years ago there is some support for that statement; not as a presently accurate statement as it is presented though.

    Thoughts?

    -Gene

  26. BD-

    I understand, really I do.

    You, and all others here, know that I have high regard for Mark Lemley. I don’t always agree with him, and likely probably disagree much or even most of the time, but he is certainly to be taken seriously. While he is an academic he is also a skilled lawyer that works for a high powered law firm with a very good track record in court.

    I think what he is trying to do is come up with a single unifying theory that justifies patent law. He is looking at the issue and asking “when should a patent be granted and why?” His approach is Jeffersonian in that Jefferson wanted to suffer the embarrassment of a patent only to the extent absolutely necessary, so I don’t see any problem with probing that line of thinking or suggesting that we want to issue patents in circumstances where innovation would not otherwise happen.

    I think the mistake is to focus patent by patent. We want a SYSTEM that will lead to the goal, which is more innovation that would exist without the system. That doesn’t mean that every patent needs to represent an innovation that wouldn’t have been made absent a patent, but it should mean that the system as a whole results in more. If we were worried about each and every patent and doing justice on the micro level the macro justice would be lost because the system would come to a haul, backlogs would be enormous and all because we were trying to get every single application correct. Two-pair of eyes proved that is NOT the best approach and you lock up innovation when you try and do that.

    What I do like about Lemley’s article is the end where he talks about race theory. The fact that people are racing to get a patent seems to, in and of itself, lead to more innovation. He also says there is likely no unifying theory of patent law that explains everything. I take that as a HUGE plus. How can any naysayers challenge Mark Lemley? If he is concluding that a patent system does result in more innovation that is good news. Courts listen to him and follow his approach. We don’t have to worry about Judge Newman and Judge Rader or Judge Lourie, etc. etc. but what about that district court judge who doesn’t like patents? Having a high profile article by Professor Lemley in the Michigan Law Review that reaches the conclusions it does will, in my opinion, be pro patent in the long run. It rebuts the specious arguments of the ACLU, and I think we will have to rebut those more and more in the future.

    PREVIEW: Ron Katznelson is working on an article that is a critique of Lemley’s piece and I hope to publish an executive summary in the coming days. Ron makes very good points and I think the audience here will like his article a lot. He focuses on much of what you do in your comment. My plan is to then next week write something myself. I like the ultimate conclusion Lemley reaches, but don’t like the “invention is in the eye of the beholder” type language.

    Cheers.

  27. Bobby-

    It is really hard to read what you write when you start by saying that the iPad is not an invention. Of course it is an invention. It is a major innovation that was laughed at by the industry and then has become extraordinarily successful. The fact that a single patent doesn’t cover the iPad doesn’t make it any less a invention or innovation.

    Cheers.

    -Gene

  28. Gene,
    “If he is concluding that a patent system does result in more innovation that is good news.”
    I’m not sure I’d agree with that sentiment, even if I agreed with his conclusion. To me, good news would be having an idea of how the patent system can be improved, because that means we will be able to get more innovation. That’s why I think that theory and research should be an influencing force on law, instead of trying to attempt to develop theory and do research in order to retroactively justify existing policy.

    Now, I have not had the chance to read Lemly’s paper in full yet, but from what I’ve read from him, he does seem to avoid drawing hard conclusions about a particular aspect of the patent system. I would think it likely that he would focus upon how patent racing COULD justify our current patent laws, but not coming to a conclusion that it actually does. Doing so would be seem to be very difficult, as I don’t think a lot of research has been done on that subject.

    And on the subject of the iPad being an invention, I qualified it by saying that it was not an invention in the sense that is relevant here. Treating the iPad as an invention, not even the iPed is truly a copy.

  29. Gene, you are exactly correct that the PTO issued a bunch of software patents that covered technology that predated the filing dates of those patents. That error arose because software programmers adopted the Kool-Aid that software is not patentable and for so many years kept their software developments as trade secrets, the way one does if patents are not available and the subject matter details can be kept secret.

    Later, as the Federal Circuit educated the PTO that a machine with software loaded on it is a new machine, the Office started getting applications on machines programmed with software that apparently did what had been practiced as trade secrets for a number of years before. Since all of that commercial work was kept secret, no amount of searching by the applicant or the examiner could find anticipatory or obviousness-inducing prior art. Hence the patents issued.

    The Patent office and the patentees were excoriated, when it was the fault of the software people who had kept their inventions secret, thinking it was not patentable. The patent system rewards invention, but only if the invention is disclosed. By choosing not to disclose, inventors who keep their inventions as trade secrets risk having their inventions independently developed and patented by those who are willing to disclose to the public.

  30. Proposing to name the race-to-file theory of patent law “The Red Queen Theory.”

  31. YAY Cowboy!

    You hit the nail on the head. The patent office is currently overcoming a “vacuum” of software and business method patents. There is no information base to search for prior art. Previous copyrights only had pages of code and did not describe the invention or how the invention worked. Software function was kept proprietary so the customers had to go back to the provider for maintenance and upgrading. Programmers liked this system where they controlled the information. Patents start coming out and they are upset that others got patents to their “proprietary” software functions.

    Now to explain to the “open source” community how public disclosure will limit the number of bad patents.

  32. Gene,

    It is not as if I do not understand what Lemley is trying to do that triggers my gag reflex, it is precisely because I understand what Lemley is trying to do that my gag reflex is triggered.

    He should know better, yet persists in his dogma (not only blindly, but blinding others) – Not to get too preachy, but Matthew 18:6 comes to mind.

  33. Sad to see Mark continue to channel “take from those who will, can, and do . . . and give it to those who won’t, can’t and don’t ” folks like Karl Marx.

    Maybe what he meant to say was: “The Myth of the Soul Inventor.”

    Those in glass ivory towers should know better than to throw rocks.

  34. One of Prof Lemley’s key errors (in a very target rich environment) is to suggest that there’s only one goal of the patent system, and that “encouraging only inventions that others in the field couldn’t have made” is that sole goal. An even bigger goal, at least in economic effect, is to encourage investment in development of new ideas, to promote progress of the useful arts by translating ideas into useful products. An invention as a naked idea has no social value until it is translated into a useful product. But that translation is often very costly and risky. The “first unit sold” of a new invention often has very high fixed costs, including, for example, sorting out which chemical species out of a family has the best balance of safety, effectiveness, and manufacturability, getting the bugs worked out, finding the best compromise and tradeoff between manufacturability, product function, and aesthetics, and—often most costly—marketing and educating purchasers of the value of the invention. Once the first inventor to market bears those costs, it is often relatively inexpensive for a second market entrant to come in with a “knock off.” Because the second entrant does not bear the same risk or high fixed costs, often it can under-price the first entrant.

    To translate this into basic economics, the knowledge that an inventor develops to translate an idea into an invention is an economic externality when it is disclosed to the public. The patent system permits the inventor to internalize that externality, to capture the value of the knowledge he developed. Like any other positive externality, unless there is some effective way to internalize the externality, the economy as a whole will sustain underinvestment. The intellectual property system is the most effective way (the only effective one?) that any society has ever developed to accomplish internalization of information externalities. And it does it quite effectively. Though hard data are hard to come by, the uniform view of venture capital, entrepreneur management, and the like is that the biggest economic effect of the patent system is to facilitate capital flows. Because the patent system provides limited exclusion from competitors, investors can invest in those “first unit” fixed costs, and recover those fixed costs, with some protection against competitive price erosion.

    Because Lemley’s thesis leads him to conclude that “we should be denying patents on the vast majority of the most important inventions” (Lemley 2011, p5), he rejects the economic necessity for internalizing the externalities associated with inventors’ contributions to the public. Therefore, Lemley’s statement on page 5 consigns the rest of his paper to economic irrelevance.

  35. David,
    I see the primary economic justification for patents being offsetting externalities, but there is still a need to separate the externalities that need to be offset from the externalities that don’t need to be offset. If the focus on patent law is on what an individual has done, and multiple parties have independently invented the same thing at roughly the same time, all but one of them will have done so without obtaining a patent, assuming competency from the USPTO. Without another theory justifying patent law, we’ve got iron-clad evidence that, in that instance, we would have someone invest in inventing the invention without giving that someone a patent. That means granting the patent had practically no social value, but bears the social costs of excluding vendors that also invested in research. That would almost certainly be an externality that is not worth offsetting, and appears to be norm, not the exception. That’s where a new theory for justification would have to come in if we don’t want to drastically cut back if not completely abandon the patent system we know today.

    Lemly also addresses ‘free-riding’ in another paper, and notes that containment of positive externalities through legal means is rare, and that in the cases it does occur, it is generally only to the extent needed for that behavior to occur (at least in theory). Containment of negative externalities is quite common, but is a completely different economic argument.

    Even if we decide we do need to offset positive externalities, we’ve also got to determine when if ever patents are the best tool to deal with such externalities. If another tool, such as direct funding, provides better results, then that is the tool to use.

  36. that need to be offset from the externalities that don’t need to be offset

    …and we leave that to our god socialist friends to tell everyone else what they need…

    That would almost certainly be an externality that is not worth offsetting, and appears to be norm, not the exception.

    Especially if you close your eyes and simpy believe the propaganda instead of looking at facts like the number of actual interferences per total number of applications…

    But why let facts get in the way?

    Another glass, Bobby?

  37. “Without another theory justifying patent law, we’ve got iron-clad evidence that, in that instance, we would have someone invest in inventing the invention without giving that someone a patent.”
    They invested (likely) assuming they would get a patent. The fact that they didn’t is not material to the incentive that the patent provided.

    “That means granting the patent had practically no social value.”
    No … the patent made somebody a winner. If you want to look at it using evoluationary terminology … the fittest company with the best engineers, best R&D budget, and/or best managers won (or will at least win in most instances — even evolution must conceded that in isolated instances, the weak survive and the strong perish). Also, because the patent was granted, these winners have their “winning ways” reinforced. Also, it shows the losers that they need to “step up their game” if they want to compete.

    “and appears to be norm”
    I looooove how you keep throwing this out with ZERO evidence. Patent interference proceedings are exceedingly rare — and those are the best data that establish near simultaneous patenting.

    “If another tool, such as direct funding, provides better results, then that is the tool to use”
    Putting in place the mechanism to decide who warrants “direct funding” and who doesn’t is very expensive. Also, where are we going to get this funding? Patent law is consistent with capitalism because capital (i.e., money) is moved to the economic winners or in this case the research winners.

  38. “They invested (likely) assuming they would get a patent. The fact that they didn’t is not material to the incentive that the patent provided.”
    Assuming they understood the system to any real extent, they assumed they had a chance at a patent, if they were even concerned with a patent for purposes other than defending against other patents. Understanding that it’s a chance and not a certainty certainly changes the effect of an incentive.

    “I looooove how you keep throwing this out with ZERO evidence. Patent interference proceedings are exceedingly rare — and those are the best data that establish near simultaneous patenting.”
    Near simultaneous patenting and near simultaneous inventing are two very different things, and a great number of patents sit around doing nothing anyway, making interference pointless. Anyway, Lemly’s full paper goes into great detail about it, as do many other sources.

    “No … the patent made somebody a winner. If you want to look at it using evoluationary terminology … the fittest company with the best engineers, best R&D budget, and/or best managers won (or will at least win in most instances — even evolution must conceded that in isolated instances, the weak survive and the strong perish). Also, because the patent was granted, these winners have their “winning ways” reinforced. Also, it shows the losers that they need to “step up their game” if they want to compete.”
    If one thing is selected for more than anything else by the patent system, it’s using the patent system to one’s benefit. It’s also interesting that you left of ‘the company with the best patent attorneys’ as a party that would win, as that would likely play an important part. ‘Corporate Darwinism’ is a rather odd justification, especially since you haven’t said anything specifically about the state of the art. This theory would seem to result in greater consolidation of firms from a lot of small to a few big. However, the former is generally perceived to be better in most cases for the public in regards to both technological advances and competitive products.

    “Putting in place the mechanism to decide who warrants “direct funding” and who doesn’t is very expensive. Also, where are we going to get this funding?”
    We already do this to some extent through things like the NSF. The source of the funding would probably be taxes, although we could very well might utilize private options for putting money into certain research through charities. Personally, I consider freedom to be a far more vital resource than money. And this is, of course, assuming that we actually do need to offset externalities.

    “Patent law is consistent with capitalism because capital (i.e., money) is moved to the economic winners or in this case the research winners.”
    Patent law is inconsistent with capitalism because it shifts capital away from the competitive norm via legal monopolies. And once again, ‘to promote the progress’ isn’t a very capitalist statement for why we would have a certain kind of intervention in direct competition. That doesn’t mean it’s bad, but it’s hardly a policy that would be championed by a hard line capitalist.

  39. Sorry Bobby, you’re misusing the jargon, and I don’t know what you said. It’s my fault for using jargon that I learn in my Econ 101 class, but not everyone did. I alwasy strip jargon out of briefs to a court, I shouldn’t have jargoned here.

    An “externality” is any effect that falls on third parties that did not voluntarily participate in the transactio that created the effect, and that are not reflected in the price between the voluntary parties. Pollution (for its effects on other than the polluter) is the classical negative externality, information with economic value that flows away from the party that created it is the classical positive externality.

    Externalities are not “offset,” they are “internalized” by forcing the costs or benefits back on the party that created them. You used the word “contained” which isn’t the standard jargon, but I see you mean it to be the same as “internalize.”

    A couple of your facts are wrong (or vanishingly close to wrong). Simultaneous invention of the same invention is really rare — 100 interferences per year? Many peopel that invent don’t invest in productizaiton–and in lots of fields, if an inventor doesn’t have some assurance of sole control of the market, there will be no investment (pharma is the classical example of that).

    Where does “direct funding” come from? In the private sector, it comes from investors, who invest only because they see sustainable profits supported by sustainable competitive advantage.

    Now that you unrdestand what I said, can you rewrite your posting without jargon? I don’t understand your first paragraph at all.

  40. Bobby — now I’ve read your two follow up articles. Come back when you’ve been out of academia for a few years, and you’ve been in the private sector where everything revolves around profitability.

  41. “Understanding that it’s a chance and not a certainty certainly changes the effect of an incentive.”
    Somewhat, but not much. Nothing in life is certain except death and taxes … unless you are a big multi-national corporation with good lawyers. All business decisions include risk factors — at least they taught that when I got my MBA.

    “Anyway, Lemly’s full paper goes into great detail about it, as do many other sources.”
    Start naming your sources. With hundreds of thousand of patents issuing each year (in the US alone) and your statement that this is the “norm,” your sources should be able to cite thousads, tens of thousands of instances. I’ll be waiting …. but I won’t be holding my breath.

    “It’s also interesting that you left of ‘the company with the best patent attorneys’ as a party that would win, as that would likely play an important part.”
    The best attorneys get you better patent coverage … it doesn’t allow you to win the race to the patent office (if there is a race) or help you develop better inventions.

    “We already do this to some extent through things like the NSF.”
    I personally know someone who did that — they do grants for high-level research … not your average run-of-the mill patent ideas. So, what kind of money are we going to give these people? Enough to cover their investment? Enough to cover their invenstment plus a reasonable amount of return? Talk about the biggest boondoogle of all boondoogles. You really haven’t thought this through very hard, have you?

    “However, the former is generally perceived to be better in most cases for the public in regards to both technological advances and competitive products.”
    By whom is it perceived? Innovation comes from all walks of life. Some small companies innovate because the have to. Other small companies cannot because it costs too much. Some big companies don’t innovate because they’ve become lazy. Other companies have innovation as part of their culture. In capitalism, successful companies/ideas/managers attract capital, which lets them become bigger. A patent is a reward to those companies that innovate — plain and simple.

    “Patent law is inconsistent with capitalism because it shifts capital away from the competitive norm via legal monopolies”
    Patent law favors innovators … lack of patent law favors copiers/marketers. I believe that the flow of capital should go to those innovate.

  42. David,

    Calling economic babble talk “jargon” is being overly kind.

    When an “internality” becomes an “externality”, that is the same as when post-consumption nutritional addedants leave the digestive system and become plain and simple (bs)

    Call me infantile, but all I can understand is the story of the Little Red Hen:
    http://en.wikipedia.org/wiki/The_Little_Red_Hen
    … if you (the inventor) are the one who sows, then fairness says you should be the one who reaps.

  43. “Nothing in life is certain except death and taxes … unless you are a big multi-national corporation with good lawyers. All business decisions include risk factors — at least they taught that when I got my MBA.”
    Yes, but certain things in life are less not certain than others. And in this case, the risk is quite great. If you succeed, you get to carry on and temporarily exclude others from direct competition, and if you fail, you not only will fail to recoup your costs, but you may also be excluded from practicing something you independently developed. By contrast, a ‘singleton’ failing to get a patent would merely have to deal with competitive norms. These are very different scenarios representing very different risks.

    “The best attorneys get you better patent coverage … it doesn’t allow you to win the race to the patent office (if there is a race) or help you develop better inventions.”
    Possibly at the level of the race to an individual patent, although I wouldn’t be surprised if there’s some attorneys that could shift the balance on that matter too. In the context of an entire portfolio, how much control you received from each race you won and how much control was taken by each race you lost becomes a great deal more important.

    “Start naming your sources.”
    Lemly’s paper already cited sources. I recommend you read it.

    “So, what kind of money are we going to give these people”
    The same amount of money you give anyone else for performing a service or selling a good: Just enough to convince them to do it.

    “By whom is it perceived?”
    Henry Nothhaft at least perceives this to be the case, saying things like “the kind of break through innovation that creates new industries and new jobs always, that’s always, come from small start up companies not large established firms.” I seem to recall Gene generally agreeing with the notion as well. The existence of antitrust law generally reflects on the widely held economic views that monopolistic and oligopolistic practices are often economically inefficient. That’s not to say there aren’t exceptions, but I specifically wrote “generally” and “in most cases” to make room for those.

    “Patent law favors innovators … lack of patent law favors copiers/marketers.”
    An incredibly broad statement, and not really substantiated. Furthermore, it doesn’t address independent inventors, who are not actually copying. In fact, someone who independently invents something and is the first inventor of a related something else can be blocked by a patent.

    “I believe that the flow of capital should go to those innovate.”
    A statement that lacks any qualifiers. It’s easy to agree with that statement in the abstract, but when you get to a more concrete flow of how much capital goes to which innovators at a cost to which others. Furthermore, your personal beliefs do not redefine capitalism.

  44. “Yes, but certain things in life are less not certain than others. And in this case, the risk is quite great. If you succeed, you get to carry on and temporarily exclude others from direct competition, and if you fail, you not only will fail to recoup your costs, but you may also be excluded from practicing something you independently developed.”
    Again … not a reflection of reality. As I’ve noted before, what is simultaneously developed may be different solutions to the same problem, but rarely identical solutions. In that situation, different patent coverage can be obtained by both the winners and losers.

    Regardless, do you think that removing the “pot of gold” at the end of the rainbow will make more people do R&D? Let me guess, when you grew up, you were encouraged not to “keep score” to avoid hurting the other kid’s feelings.

    “Lemly’s paper already cited sources.”
    You were spouting this stuff well before Lemley’s paper. I want your sources.

    “The same amount of money you give anyone else for performing a service or selling a good: Just enough to convince them to do it.”
    What if they are lousy inventors (i.e., they don’t invent anything?) Are we going to pay them too? When are we going to pay them? FYI – most of them are going to want the money upfront. R&D costs real money.

    “An incredibly broad statement, and not really substantiated.”
    Let me direct you to China – the world’s greatest copiers and a society in which intellectual property laws are pretty lax. HOw many in

    “Furthermore, it doesn’t address independent inventors, who are not actually copying.”
    They may be “independent inventors” but they are not first inventors. In our economic system, there are winners and losers – you cannot have winners without losers.

    “Furthermore, your personal beliefs do not redefine capitalism.”
    Nope – but the patent law makes sure that my beliefs are the “law of the land” … and for that I’m very greatful.

    Henry Nothhaft????
    Isn’t this the guy that started a speech with the statement “I’d like today to offer a personal testimony to the importance of patents in job creation.” Regardless, let’s assume, for sake of argument, that ALL important innovation was performed by small companies, as alleged by Henry, then why should we worried about the big guys getting patents? They are obviously not for important inventions – right?? Also, what happens to those small guys that don’t get patent protection …. hmmm. I wonder.

    Bobby – let’s take a step back and do another exercise. You’ve got a lot of opinions on the subject, why don’t you prepare an article that describes how you believe intellectual property law (let’s include patents, copyrights, and trademarks) should be. If you had the ability to rewrite the laws, how would you do it? Also, let’s try to stay away from generalizations — I want specifics. How are you going to sort inventions that deserve protection from those that don’t. How should software be protected? What kind of copyright scheme should we have? It is one thing to criticize the chef that cooked your meal and another thing to cook the meal yourself. Why don’t you cook us a meal ……

  45. Bobby: “Anyway, Lemley’s full paper goes into great detail about it, as do many other sources.”
    JV: “Start naming your sources.”
    Bobby: “Lemly’s paper already cited sources. I recommend you read it.”

    @Bobby,
    Have you read Lemley’s paper? Have you studied his sources?
    We have read Lemley’s paper AND his sources in detail. We studied Lemley’s examples in detail and show that his accounts of these inventions are made up. They do not reflect real historical facts. Moreover, none of Lemley’s sources on simultaneous invention provide the evidence of simultaneous invention that Lemley alleges. Some do not even know what invention is. See our critique of Lemley’s paper in today’s pages of this blog at http://ipwatchdog.com/2011/09/15/a-critique-of-mark-lemley%e2%80%99s-%e2%80%9cthe-myth-of-the-sole-inventor%e2%80%9d/id=19199/; you might learn something old. After you do, please come back here and answer JV’s request: “Start naming your sources.”

  46. The silence is deafening.

  47. “Again … not a reflection of reality. As I’ve noted before, what is simultaneously developed may be different solutions to the same problem, but rarely identical solutions. In that situation, different patent coverage can be obtained by both the winners and losers.”
    You are once again describing a different scenario then the hypothetical prescribed.

    “Regardless, do you think that removing the “pot of gold” at the end of the rainbow will make more people do R&D? Let me guess, when you grew up, you were encouraged not to “keep score” to avoid hurting the other kid’s feelings.”
    No, and are you in such a weak position that you need to make this personal? Your example is rather odd, though, as I am the one suggesting open competition and you are the one suggesting that certain parties be protected from competition.

    “You were spouting this stuff well before Lemley’s paper. I want your sources.”
    The source I’ve been using for a while is Boldrin and Levine’s Against intellectual Monopoly, which itself cited many sources. There were also a number of other small articles I can’t recall off hand.

    “Regardless, let’s assume, for sake of argument, that ALL important innovation was performed by small companies, as alleged by Henry, then why should we worried about the big guys getting patents? They are obviously not for important inventions – right?? ”
    The big guys often manage to get patents on incremental yet vital steps, and have the resources to use the legal system to their advantage.

    “Let me direct you to China – the world’s greatest copiers and a society in which intellectual property laws are pretty lax. HOw many in”
    It seems you didn’t finish this thought. However, it shows gross incompetence to make a comparison to China. So many points important to innovation and creativity are different that attempting to get any useful data is pointless, and seriously thinking that China could be a good example is quite troubling.

    “They may be “independent inventors” but they are not first inventors. In our economic system, there are winners and losers – you cannot have winners without losers. ”
    Your argument was that patents shift resources from copiers/marketers to innovators. However, independent inventors are not copiers and may or may not be marketers, making it a different argument. We could still have a patent system that could allow for independent invention.

    “Nope – but the patent law makes sure that my beliefs are the “law of the land” … and for that I’m very greatful.”
    Congratulations in winning a point that was not contended.

    “If you had the ability to rewrite the laws, how would you do it? ”
    Reducing the terms and scopes of both patents and copyright towards nothing over a number of years. Gradual reduction is to allow the industry to transition. Trademark would be shifted to where action can only be taken by consumers that are deceived.

  48. “Reducing the terms and scopes of both patents and copyright towards nothing over a number of years. Gradual reduction is to allow the industry to transition.”
    I asked for specifics — not generalizations. I was asking for an article, not an abstract for an article, in fact what you gave us is little better than a title of an article.

    “Trademark would be shifted to where action can only be taken by consumers that are deceived.”
    Nice. Consumer sues Coka Cola (a knockoff of Coca Cola). What is the judgement? Well, if they bought a case of soda, maybe $10?? If they bought 10 cases of soda, $100? How may consumers are going be bringing suit in those situations?

    Now, the party that is injured the most, Coca Cola, has spent millions (if not hundreds of millions) developing their brand name, and you don’t think they should have standing to sue? So you are saying that they aren’t injured if a hundred knock-offs start producing product with similar names, similar packaging, similar bottle shape, similar marketing? Very reasonable on your part.

  49. “I asked for specifics — not generalizations. I was asking for an article, not an abstract for an article, in fact what you gave us is little better than a title of an article.”
    Okay, for specifics, how about we give both authors and inventors 15 years from today (for new works and inventions) or the expiration of an existing term (for existing works and inventions), whichever is shorter. So, if someone publishes a book 5 years from today, they will get 10 years of copyright. After 15 years, we will no longer have any effective copyright or patents. 15 years may not be the optimal transition period, but for these purposes, it’s good enough.

    “Nice. Consumer sues Coka Cola (a knockoff of Coca Cola). What is the judgement? Well, if they bought a case of soda, maybe $10?? If they bought 10 cases of soda, $100? How may consumers are going be bringing suit in those situations?”
    It would depend on whether consumers were defrauded on a large scale or not. If Wal-Mart switched to Coka Cola, I’m sure there wouldn’t be much difficulty in bringing a class action lawsuit. If a single mom and pop store did the switch, there may not be a lawsuit, but their would be a loss of trust in that store. If you are particularly concerned about consumers being underrepresented, then a high statutory minimum could be put in place.

    “Now, the party that is injured the most, Coca Cola, has spent millions (if not hundreds of millions) developing their brand name, and you don’t think they should have standing to sue?”
    No, as I see the only justifiable purpose of trademark being a consumer protection law.

  50. [...] by multiple people at nearly the same time. He summarizes his article on the IPWatchdog blog here. Summaries also appear on the Written Description blog and PatentlyO blog. Lemley argues that, [...]

  51. “After 15 years, we will no longer have any effective copyright or patents.”

    Let’s skip the patent spect for now. Explain to me how writers, artists, musicians, are going to earn a living? Just so we can keep a little focus, explain to me the busines model whereby a writer makes a living. BTW … it can be any type of writer. One that writes novels, one that writes newspaper articles, any type of writer.

  52. They’ll earn a living however they can figure out to earn a living, and if they can’t earn a living doing it, they’ll do it as a hobby and have another job with more reliable income. Musicians generally make money from performances, not record sales. A lot of the appeal of newspapers is that the news is the articles in it being timely, which puts copiers at a disadvantage.

    We had artists, musicians, and writers before copyright, and we’ll have them without it.

  53. This tit-for-tat argument regarding patent, copyright and trademark is not going anywhere. JV you will never convince Bobby that patents, copyrights, or trademarks have a place. He see’s it as a free-love world where we scrap all IP law and go with a “common sense” system. Of course his common sense is correct and there is no room for existing systems.

    The premise of Lemley’s article was that all inventions would have happened anyway and that we are wasting our time giving patents to things that would have been invented anyway. We should only give patents to “flash-of-genius” inventions that are entirely new.

    Unfortunately, nothing is created in a vacuum. The patent system serves as more than a mere reward for genius inventors, the patent system provides an incentive for innovators to disclose their inventions. Because industry leaders provide their hard earned knowledge for others to use, the overall knowledge available to all increases. If too few patents are issued, then trade secrets are favored. The information available for development dwindles and only university scientists publish. I know without patent protection, many of the innovations at my company would be kept secret and publications would not be authorized. Part of our publication process is to determine if the information should be kept secret or if it can be patented and published. In other words, without patent protection, our company would likely not publish the information in industry journals.

    Not to worry Bobby, the America Invents Act (a.k.a. IBM’s custom patent act) will remove some of the problems associated with software patents, non-practicing entities (trolls) and prior use. It actually favors trade secrets so we will get to see what happens when more people use trade secrets.

  54. “He see’s it as a free-love world where we scrap all IP law and go with a ‘common sense’ system.”
    I ask Bobby the questions to see whether or not he has spent any of his considerable brain wattage in thinking about the consequences of the object of his affection (i.e., “free IP-love”).

    As is readily apparent from his comments, he has not. A novelist can spend years writing a book, and yet Bobby asks him to give away his work for free. Bobby may think, “surely, someone will pay Stephen King for his next book.” That may be true. However, once the book hits the public, one of his “free lovers” will scan it and put it on the internet for all to download for free. Meaning that the author will realize a tiny fraction of what he/she could have.

    Also, think about the derivative works. I haven’t read the “Game of Thrones” series, but I know many who have. What happens if after the first book, a couple “fans” decide to take the story arcs in totally different directions and try to publish them. Who is going to wade through the morass of the internet to determine what Book II is real one of not.

    Real journalists actually travel to cover their stories. Who is going to pay for that? Bobby writes “[a] lot of the appeal of newspapers is that the news is the articles in it being timely, which puts copiers at a disadvantage.” Disadvantage????? What era is Bobby living in? The 1970s? First, almost all newspaper are publishing their stuff online (i.e., being timely)– which means that anybody marginally sophisticated enough can have those articles downloaded and uploaded on their own website in a matter of seconds.

    Let’s take the NFL. They have contracts with the major TV networks and DIRECTV to broadcast those games. What happens if there is no copyright? Anybody can record those games and rebroadcast them. With the lack of exclusivity, the money revenue drops drastically and the game is entirely changed.

    “We had artists, musicians, and writers before copyright, and we’ll have them without it.”
    We had artists and musicians who were employed by the rich and produced their works solely for the rich. Ever hear of the phrase “patron” before. Copyright allows an artist to charge the masses only a tiny fraction of what it costs to produce something. Not possible in a world without copyright.

    “Musicians generally make money from performances, not record sales.”
    Good musicians make (very good) money on sales of DVDs, use of songs in other contexts (movies, advertising, etc.) and from being played on the radio. Regardless, making a living as an artist is extremely difficult, even today. You simply want to make it harder. Also, you state that “they’ll do it as a hobby and have another job with more reliable income.” Are we going to get better music, art, literature from people who do it as a hobby as opposed to do it for a living?

    One last thing, tell me how anybody is going to make money producing a movie?

    I want to protect the creators, Bobby wants to protect the users.
    I want to protect the host, Bobby wants to protect the leaches.

  55. Professor Lemley, as much as I enjoyed your post I found myself in doubt and seeking to confirm what I already knew, that the solo inventor does exist. A quick search on Google brought me to countless sites of inventors from around the worlds and their invention both modern day and from the past. See even: http://en.wikipedia.org/wiki/List_of_inventors. What you describe in your article is the improvements on inventions already in existence, the very basis of our patent system. However, turning to the later part of your post I am in total agreement with you. Like every good race, all the runners are trying to win and sooner or later each runner gets their moment of glory, albeit fleeting. I for one am looking forward to see who wins the races at the Patent Office and more importantly how we all try to increase our speed. Thanks!

  56. [...] Professor Mark Lemley wrote an article about the Myth of the sole inventor, to which we provided a critique, with an executive summary of the critique published here on [...]

Leave Comment