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Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

from the not-at-all dept

I know a fair number of patent lawyers and copyright lawyers who are quite skeptical of what’s become of patent and copyright law — and who readily admit that the law has gone way beyond what is reasonable or what the law was designed to do (i.e., “promote the progress…”). And yet there are some in the patent or copyright legal business who somehow seem to think that it’s traitorous for a patent or copyright lawyer to ever dare question the idea that patents and copyrights work. I had a patent lawyer argue with me the other day that of course patents encourage innovation, because the Constitution says they do. This sort of logical blunder blows my mind. How can otherwise intelligent people assign such backwards logic to things? Do these same people also believe that when Congress passes any law, it automatically achieves its goals?

I have a good friend, who has recently made it through law school. Since he spent over a decade as a computer scientist, the law firm he went to work for made sure he did a rotation in the patent group (but of course). He was telling him how sick the experience made him feel. He said the stuff he was working on was disgusting. Helping companies patent blatantly obvious ideas, and using those patents to sue other companies who were innovating. Even worse, he said that many of the partners in the group seemed gleeful at how they were abusing the system, solely because of the amount of money such projects bring in. None of them bothered to consider that the overall impact of what they were doing wasn’t “promoting the progress” but was harmful to society as a whole.

So, I can understand how lawyers can be on both sides of the equation (though, it says something to me about how they view the world). And, yet, there are still some IP attorneys who seem to think that it’s somehow ridiculous that a patent attorney could ever find patents a net negative on society (leaving aside the many, many recent studies done by lawyers who have shown exactly that). Stephen Kinsella, a patent attorney who is against patents has responded to one such claim by a patent attorney, explaining why of course a patent attorney can disagree with the patent system, and still do his job. He notes plenty of patent attorneys who have become skeptical of the patent system.

But what’s really stunning are the claims of the patent lawyer, Gene Quinn, who prompted Kinsella’s claim. He was actually writing in response to a Techdirt post, where he makes numerous odd claims that don’t make much sense. He assumes that it’s factual that patents must promote innovation based on “the basic laws of economics.” This makes me wonder which laws of economics Quinn is talking about, seeing as the laws of economics I know say that monopolies almost always lead to suboptimal societal benefit. He claims that “all the evidence” say that patents increase innovation. Except that’s not true at all. We can start listing off all the studies that have shown the contrary, but I’ve yet to see one that actually supports Quinn’s position. In response to that, Quinn amazingly claims that the studies that prove him wrong don’t matter:

Would you please stop reading studies and look at history! Studies are done by academics with an agenda, are based on thought experiments, do not take into consideration important factors and are preconceived in order to come out with a particular answer.

That’s a neat trick to dismiss the actual evidence (after insisting all the evidence was on his side), but it’s flat-out, almost 100% wrong. And provably so. Because most of the studies I was talking about aren’t “based on thought experiments” but are “looking at history.” And, among those “biased academics” are at least two Nobel prize winning economists (Maskin and Stiglitz) and someone who was a very successful entrepreneur before moving to academia (Bessen). Besides, most of the academic studies that Quinn dismisses as irrelevant was peer reviewed. There are problems with peer review, of course, but to claim that these are far out ideas, while insisting that “the basic laws of economics” supports patents is simply not supported.

There are plenty of reasons why people might believe patents increase innovation — but they’re the same theories of the mercantilists in the 18th century, who believed that monopolies on other products spurred more development in those businesses. That theory was debunked and is considered laughable by pretty much any economist today. And yet, when it comes to patents, why do people automatically reject what economists realized two hundred years ago? Monopolies may temporarily benefit the monopolist, but at the expense of society as a whole. And, if Quinn wants to look at history, let’s take a look at people who did actually look at the history, from Eric Schiff (showing rapid innovation and industrialization of the Netherlands and Switzerland without the use of patents) to Petra Moser (showing no less innovation in comparable countries with no patent laws to those with patent laws) to Lerner’s work (comparing various countries before and after they changed patent systems, showing that stronger patent laws do not lead to greater innovation) to Qian’s research (patent system changes across countries in the pharma industry, showing stronger patent laws did not lead to greater innovation, and, in fact, that weakening IP enforcement often led companies to become more innovative to stand out from the competition) and onward (there are a lot more where that came from). Hell, even the World Intellectual Property Organization (which usually is pretty damn supportive of IP) has noted that there’s been no real evidence that IP protection leads to any economic payoff.

Quinn says to ignore the studies and look at the history, but the history says exactly what he claims it doesn’t.

Those who insist that patents must lead to innovation fallback on a few, rather basic, logical fallacies. They point out that countries with strong patent laws tend to see much greater innovation. This is what Quinn means by “look at the history.” But they are mixing up correlation with causation — not recognizing that the stronger patent laws almost always post-date a period of much greater innovation, and then the patent system gets strengthened, not to promote more innovation, but to limit competition from those who innovated in the past (and, in fact, research by Park and Gigante found evidence of this very thing in looking at “history”). Or, they claim that since we still see some innovation, then clearly patents don’t hold innovation back. But compared to what? The argument we’re making has never been that patents stop all innovation cold. Of course innovation still occurs. But the question is at what rate? As we’ve seen in countries without patents or with much weaker patent systems, you tend to have much greater competition among smaller, more nimble firms. Since competition is a great driver of innovation, it’s no surprise that there would still be great innovation in such societies. Separately, the fact that there may be fewer major innovations coming from societies with weaker patent laws today is again, not evidence that patents work. There are numerous factors that influence innovation — and picking a country with poor infrastructure or widespread poverty, isn’t exactly an apples to apples match with someplace like the US.

But just thinking logically, you can realize why the argument that, without patents, there would be no innovation, is provably false. When it’s easy to copy someone copying losing all value by itself. Just being a copycat is pretty useless, because anyone else can do it. So, the real value is not in copying, but in leapfrogging. And that leapfrogging is (*gasp*) innovation. It’s only in a world with patents where copying has value. That’s because those patents create monopoly rents — and thus, there’s an artificial profit bubble, that others want access to. That creates a societal net loss.

Given all of this, it makes plenty of sense why patent attorneys could certainly recognize the harm that patents can cause. In fact, I would think such individuals are a lot more trustworthy on patent issues, since you know their position is not influenced by the fact that they make money off of the system. So, no, there’s nothing odd about patent attorneys who find problems with the patent system. They’re people who recognize the simple fact that just because a system is set up to do one thing, it doesn’t mean that it automatically occurs. They’re people who recognize that innovation is not synonymous with patents, and are able to take a step back and say what is truly best for innovation.

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