Alan Wexelblat has an interesting post over at the Copyfight blog. After participating in a mailing list discussion about some new patents, he's rather stunned to learn that many firms forbid their employees from looking at published patents. He thinks the lawyers are confused about the difference between trade secrets and patents -- but that's probably not true. What's most likely happening is that the lawyers know that you get treble damages if you can prove willful infringement, and you do that by showing that the infringer knew of the patent. So, the way you avoid that is you don't look at any patents. This is exactly the opposite of what the patent system is supposed to be about. In fact, many patent system defenders insist that "public disclosure" is the key benefit of the patent system -- but that's a complete myth. David Levine and Michele Boldrin have already shown why patents are unlikely to increase the disclosure of inventions (because the only people who will disclose are those who know their "invention" would become public no matter what, otherwise they're better off keeping it secret), while other reports point out that patent attorneys are increasingly focused on filing vague patents that can cover lots of things, without actually disclosing anything useful. Now we can add this growing fear of willful infringement to the reasons that public disclosure isn't what it's cracked up to be -- and, in fact, may be hurting innovation by forcing those knowledgeable in a space to ignore the state of the art to avoid the possibility of huge fines for willful infringement.
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