Patent Panel Offers No Real Solution To Patent Problem
from the not-much-new dept
Lemley made some very good points about how plenty of solutions to the problems can come via business agreements rather than the courts, and the trick is to put in place the incentives to make it possible for companies to solve these problems with agreements between each other, while also recognizing the specifics of individual circumstances (such as not always granting an injunction in patent lawsuits, as per the MercExchange/eBay decision). Myhrvold responded, again, that this isn't in the "culture" of the tech industry -- where it's just natural to see what you can get away with. Of course, that ignores the idea that part of the real problem (which wasn't addressed at all) is that many of the problems have to deal with cases where companies developed similar concepts independently. Instead, he seems to assume that these big inventions are created by one person (or company) and only they deserve the rights to it -- and it's impossible that anyone else may have come up with the idea separately. From the audience, former FTC Commissioner Mozelle Thompson pointed out that encouraging companies to come to agreements outside of court could raise antitrust issues, since companies could come to "agreements" that give one company a market in exchange for staying out of another one. The panelists basically said that it has to be allowed and you just watch for the worst abuses.
However, overall, nothing really that shocking came out of the panel. The guy from SAP kept pointing out that you need to balance the incentives for competition with the incentives for intellectual property creation. That's an interesting point, that recognizes there are competing forces when it comes to intellectual property, but there was no one on the panel who was willing to argue about the net impact of patents and how balance is often a catch phrase used to argue that you're really giving in on an issue when you're actually pushing one side. There were arguments about how countries can't advance industrially without stronger IP protection (which ignores the history of places like the Netherlands and Switzerland), but no one on the panel was willing to note that the patent system all too often represents a net negative to innovation. Too bad.