Debunking Some Big Myths About Patents
from the stop-using-these-arguments dept
Rick Falkvinge recently put together an excellent post debunking ten of the common myths you hear about patents. Here’s a taste:
Myth 2: Patents drive innovation.
Fact: Patents do not drive innovation, they ban innovation. A patent is, by its very definition, something that bans the entire world except the patent holder from building and improving on a particular innovative step. If patents are driving innovation, which is claimed, then this outright ban must be shown to have side effects that somehow drive innovation to a larger extent than the extent to which the direct ban destroys it. No such side effects have turned out to exist.
To the contrary, patents are being used by incumbent industries to shut down disruptive competition. Rather than competing with better products and services, the current kings-of-the-hill are finding it more cost efficient competing with more expensive lawyers. This does neither drive innovation nor a healthy competitive market.
Other myths debunked are claims that investors won’t invest without patents, that patents are a useful measure of innovation, that the problem is just with patent trolls, that patents disclose innovation, and a few others as well. It’s really a fantastic read. It likely won’t change the minds of patent system supporters, but for anyone involved in these debates, it’s a very straightforward and clear debunking of many of the common myths about the importance of the patent system.
Comments on “Debunking Some Big Myths About Patents”
Assumptions
Seems like you’re assuming that only patent system supporters are unreasonably fixed in their position. Of course, it just can’t possibly be the case that other people can look at the same set of facts and come to a different conclusion.
HM
Re: Assumptions
I lol’d.
Re: Assumptions
Seems like you’re assuming that only patent system supporters are unreasonably fixed in their position.
I’m reminded of the difference of opinion that used to exist in the US over slavery. Some supported it, some “unreasonably” wanted it abolished and others thought that a compromise whereby it was only allowed in the Southern states was “reasonable”. Today, most people would agree that the unreasonable abolitionists were right.
Of course, it just can’t possibly be the case that other people can look at the same set of facts and come to a different conclusion.
Sure, and we call those people “wrong”.
Abolish patents!
I am sorry, but his writings are opinion, not fact. Presenting them as fast is fairly misleading. Each point needs to start with “in my opinion”, because they aren’t facts.
In the example, there is no way to easily know. We live in a world with patents, and much of the major developments are made by companies who patent their work. We don’t have a functional system out there that isn’t based on patent and doesn’t profit from patents in other jurisdictions, so we don’t know that abolishing patents would have a long term beneficial effect on innovation. At best, it may create a very short term boost as items that are currently under patent suddenly are released, but it isn’t clear that the pace of development would continue. After all, one of the major incentives for “large innovations” (the ones that move things dramatically forward, not small detail changes) may not happen.
You may not agree with my opinion, but the point is that mine is about as valid as his, because there is no simple way to know, no simple way to measure, and so on. He also does not indicate a time range for this sort of thing. Since patents last less than 20 years, it isn’t clear that there would be any benefit outside of the taking of current patents and using them now.
Re: In the example, there is no way to easily know.
Actually, there is. There are many examples, for instance, of countries where home-grown industries thrived in the absence of patents, and then languished after lobby groups forced them to introduce ?intellectual-property protection?.
There are also plenty of cases, under many patent regimes, where innovation in industries have greatly increased after crucial patents have expired, allowing for greater competition and product development.
If you want to research examples, Boldrin & Levine is a good place to start. Like all good research publications, it?s full of references you can use to check its points.
Re: Re: In the example, there is no way to easily know.
Actually, there is. There are many examples, for instance, of countries where home-grown industries thrived in the absence of patents, and then languished after lobby groups forced them to introduce ?intellectual-property protection?.
Industries thriving is not the same thing as innovation occurring. Yes, the generic drug industry in India grew greatly during the 2000’s when there were no patents allowed on chemical substances. But India was not very good at inventing new drugs during that time either.
Re: Re: Re: Industries thriving is not the same thing as innovation occurring.
Plenty of examples of innovation occurring. Just read the book.
Re: Re:
Did you miss the examples the author provided of industries that were held up until patents expired? There are more examples provided in the comments too. We certainly do have proof of significant innovation taking place only because patents expired. Do you have examples that prove the opposite?
Re: Re: Re:
Paytards don’t care about facts presented that they don’t agree with. This is the trait they share with politicians, money talks, truth walks.
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Just the whole of Asia.
Also we have OpenSource that proved you don’t need all that protection to do something and be successful.
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Or it could go on forever like it has for millenia since the dawn of men.
Your opinion is not valid because you have no evidence of anything, he does have historical facts and we can all see what happens on open initiatives that create great things.
Heck even the government tapped that recently asking to crowdsource a military vehicle.
Re: Re:
Well, Japan and South Korea seem to be part of “the whole of Asia”, but they generally see value in patents.
The open source movement has certainly done some good work, but is standing on the shoulders of those who, under a patent system, developed PCs and the Internet as we know it today and all sorts of other things without which there would be no open source movement.
And the fact (I’m not aware of it, but I’ll take your word for it) that the government turned to crowdsourcing to develop a military vehicle does nothing to demonstrate that there are problems with the patent system. Nobody is required to patent their inventions. However, it does seem unlikely that we’d have the various tools we use today (smartphones, tablets, PCs, 4G wireless, etc., etc., etc.) without a patent system to make it worthwhile to devote substantial resources to developing such technologies and products which implement them.
HM
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“The open source movement has certainly done some good work, but is standing on the shoulders of those who, under a patent system, developed PCs and the Internet as we know it today and all sorts of other things without which there would be no open source movement.”
And the people who developed PC’s and the Internet built that on the shoulders of those whom came before them and they did so from those before that, most of which didn’t occur under a system of patent (patent has only been around for a few hundred years). An argument based on “the guys who built the stuff from before” is flawed. Everything that exists was built on what came before, and that was built on what came before that, and so on. All knowledge, all science, all art, is based on the thousands of years of human experience. Your own argument disproves your viewpoint.
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Absolutely, I don’t want to discount that EVERYBODY is benefitting from the work of others throughout history. However, I don’t think you’d likely see the large-scale evolution of technology we see today without a patent system that makes it worthwhile for the investment of substantial resources.
Yes, there would still be garage inventors, but you’d probably not have an iPad in your bag today if that’s what we’d been relying on for the past few centuries.
HM
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The first Macintosh was built in a garage…
Re: Re: Re:3 Re:
No, the first prototype of an Apple was “bread boarded” in a garage. Macs came many years later when Apple was already an established company.
Re: Re: Re:2 Re:
So your logic is that Apple wouldn’t have developed the iPad without patents? Which means it’s safe to say that Apple will halt all research and development without patents?
If patents were abolished now it would simply mean an increase in the competitive market. Locks on devices such as “rounded corners” would no longer prevent other prospective businesses from releasing their own tablets. We’d probably be instantly flooded with a bunch of low quality tablets but I think we’d end up seeing the same things we see in the PC market. Choices.
Apple stands on it’s own for personal computers while hundreds of other companies compete for the Windows Market. We’d likely see the same thing. Apple would produce iOS Tablets, and hundreds of manufactures would produce Windows and Android tablets. A few would provide a better product and become mainstream while other start ups would fall. Wash rinse repeat.
Re: Re: Re:3 Re:
I think his logic is that Apple may not have had the technology available in the market place to develop the Ipad. It isn’t a question of patent of the Ipad, rather each of the pieces involved.
Touch screens, processors, and the myriad of other technologies that go into a single Ipad are amazing. If any of these technologies were developed or honed by companies who put them under patent, you have ask if they would have done the work without the patent protection. There is great potential that Apple quite simply would not have the parts available to make an Ipad today, because the technologies might not yet be developed.
It’s key in all of this: While patents may “lock things up” for a period of time, they may also have provided the needed financial motivation for investors to finance the research and development that went into them. If we get things 20 years sooner, even in a restricted way, are we not ahead?
Further, the patent, while “locking” the technology, also suggests the possible and presents other inventors or researches with food for thought. If the need is there, parallel development to find an alternate solution to the same issue, or to find another way to accomplish the same goal.
In the meantime, as consumers, we get to enjoy some pretty remarkable products.
Re: Re: Re:4 Re:
And patents make lawyers rich! The locking the content makes lawyers drool while looking for innovators to sue.
It seems like more and more that it is seen as litigate is a better strategy then to innovate.
I think there is a need for patents but the system is self serving for the people who want to litigate and does the whole process a disservice (from a long term point of view).
my $0.02
Re: Re: Re:2 Re:
How do you know that?
Because China has zero IP enforcement and they are able to create anything today.
Re: Re: Re:2 Re:
Thanks for missing the point. Everything is built on everything else. That means if you lock up everything else into patent, then there’s nothing to build on. What right do you have to “own” something that was built on ideas and works of people from the whole of human history? Patent is not needed and it really just hinders progress because it creates an incentive to hoard technology rather than bring more of it to market. Your assumption that patent creates progress is nothing short of delusional. There are other incentives out there for creating and executing useful ideas than just giving people the power to exclude others from executing the same ideas, whom are possibly even capable of doing it better.
Re: Re: Re:3 Re:
You are looking at effect without looking at cause. The question remains, would the original development have occurred without a patent system, without a system that allows for the development of business models after a discovery is made?
If the discovery is never made to start with, there is also nothing to build on. 15 years later when the patent would have expired, there is still nothing to build on.
More importantly, putting these discoveries out in patent still puts them out, and fuels creative minds to find alternate solutions, to look for a better mousetrap. It isn’t like researchers say “well, someone made a capacitive touch screen, so we can’t work on anything like a touch screen anymore”. Rather, they take it as a challenge and try to come up with another way to do it.
Better yet, companies like apple swing deals with the patent holder, and take the idea and run with it.
Patent holders are rarely going to be motivated not to license or market their ideas, because there isn’t much money in it. They can guard their patent and keep it in a box, but in X years, it gets out anyway and they make nothing. So it is incredibly important for them to either develop products, license the patent to others, or sell the patent to others that will do so.
The ideas that patents block progress can only be supported by taking an incredibly short term view of things. Someone invented it yesterday, I want to use their idea today, and I can’t. Can you honestly say at the 20 year mark that patents blocked progress? Would you care to write that post on a your Ipad2, using the high speed data network to deliver it to a remote server, using various technologies and software, much of which is patented?
Re: Re: Re:4 Re:
The Romans and the Egyptians didn’t have patents and they were super advanced for their time.
I don’t think DaVinci nor Newton had to worry about them either.
Re: Re: Re:4 Re:
If you think patent is making things better, then you’re not paying attention. There are so many parallel discoveries that occur, because ideas are not exclusive. It’s not right to give market control to one inventor when others who have made the same discoveries are just as deserving to execute and market. When ideas aren’t put behind a wall of exclusion, more can be done. This whole concept that people won’t create the greatest inventions of our time without the ability to squeeze every bit of profit they can is complete bullshit and outlines those types really want: To have a market handed to them on a silver platter instead of honestly competing with others that are just as smart, just as dedicated, and just as worthy.
And if you think putting the patents on record solves this, then you need to look at all the people that are just hoarding patents and never produce anything useful while beating real innovators down with lawyers.
Re: Re: Re:
Have you ever litigated in Japan or South Korea?
You will spend years and years and gain no money from litigation, the maximum you will get is an injunction and that is it.
Do you know how Japan beat others in the electronic industry?
Not with patents they actually had to come together and share all their knowledge to bring new products, like the creation of TRON the most used operating system in the world that nobody knows about it, it runs every microwave, refrigerator and gadget that comes out from Japan and it was developed by one firm and released so every other japanese company could use it and that is not one instance.
South Korea was until very recently a piracy haven, darn you can go right now and find knock offs of everything in Seoul, not to mention China.
http://www.popsci.com/cars/gallery/2011-06/first-crowdsourced-military-vehicle
The crowdsource thing just proves that people don’t do things only because they have a patent on it, patents didn’t drive other people to design and build that vehicle.
Patents creates monopolies and it is bad for everyone, when Apple was dominating PC’s what IBM did? that is right they openned up everything so they could have a market otherwise they wouldn’t and we probably wouldn’t have had the tremendous advances that we had if there was just Apple telling others what to consume, just like is happening with the iPhone right now that was surpassed in sales 5 to 1 by Android handsets, care to tell us where there is more options in hardware and price?
Openness drives innovation and progress not patents.
Just look at China, if they did respect IP they probably wouldn’t be where they are today.
Re: Re: Re: Re:
Uh, IIRC Japan created cartels among companies in various product areas. Not a member of a cartel? Too bad, move along and eat your sushi.
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> The open source movement has certainly done some good work, but is standing on the shoulders of those who, under a patent system, developed PCs and the Internet as we know it today and all sorts of other things without which there would be no open source movement.
Wait, what?
The open source movement started and grew before the US courts decided software patents were allowed. There were very few software patents back then.
The Internet was developed around the same time, and its standards never required a patent royalty. Not only that, but its main standardization bodies (IETF and W3C) actively avoid patent-encumbered technologies.
A lot of the growth on PCs was the IBM PC clones. They could be made without having to pay any patent royalty to IBM. IBM tried to “fix” that with MCA, and failed.
Re: Re: Re: Re:
Were there software patents in the olden days daddy?
No son, copyright was enough for everyone.
Re: Re:
When you point to Asia (mostly India and China these days, it seems), you miss the key point: They are still working off the patent system from the rest of the world. They are building on the shoulders of the patent world, while not really paying for the benefit they gain.
Opensource for software is wonderful, but without the patent devices they run on, it would be meaningless. Without patents, would there actually currently be a PC? Would we have quad core processors? Or would we be 20 years behind, just getting to the age of the internet today because there was no development? They can’t open source without a platform.
Nah, it's sophistry, Mike.
“Fact: Patents do not drive innovation, they ban innovation.”
Hmm. The whole paragraph passes a first read, BUT not long considering:
1) Strawman assertion: that patents drive innovation. No, in the past, for perhaps the majority, a desire for profit (all the way to riches) is the motive. There used to be a large and distinct class of tinkerers, some working full time at “inventing”, others just stumbling across a good idea (famous examples abound). — That’s specific to patenting, as Engineers typically solve or innovate many problems with solutions that are technically patentable but not likely worthwhile to do so. — But in any case the technical types are disappearing: nowadays the overwhelming motive is beyond profit to greed, with or without legalisms and chicanery, plus a bit of corporate vanity.
So let’s be clear that we’re discussing the modern era.
2) I don’t believe that patents were ever intended to encourage innovation, but to reward it. There is a difference, except to modern business majors who are taught that factories make widgets, and that business majors are the ones who “drive innovation”, that technical types are mere replaceable units of production. Those who started out with technical interest in the fields and worked their way up are fast disappearing: we now have McManagers.
3) Innovation is “banned” only for a limited time. — Or was in the past: nowadays tricks are used to get around the time limit.
4) More broadly, by “banning” a specific instantion of an idea to others, it can be argued that more and perhaps better ways will be found.
In sum, the problem that’s discussed is the current phase of “capitalism” in which “incumbent industries … shut down disruptive competition”.
Re: Nah, it's sophistry, Mike.
Re #2, then why were the words, “promote the progress” specifically chosen? Random convenience? By your logic, it would be equally logical for an entity (like the government) to say, “we don’t think that the bill of rights was ever intended to limit the power of the federal government, so [reductio ad absurdum].”
From the article
“If somebody is banging you repeatedly over the head with a hammer, you have the right to ask them to just stop, without having to simultaneously give them an alternative tool to hit you with.”
Gold 🙂
Unfortunately, what is presented as fact is just another instance of someone’s interpretation, and does absolutely nothing to shut down this argument
We don’t have any way of conclusively measuring whether they help or harm innovation, we can only debate back and forth forever with indirect evidence.
To truly be fair, we need a double-blind study. Simply go back in time 400 years, fork the universe off into two realities – one with patents and one without – and then watch how much “innovation” occurs in each.
Until this study is conducted, we ought to do away with patents as their benefits have not been verified
Re: Re:
while we’re at it, do the same for copyrights
Re: Re: Re:
*rabble rabble* and Trademark! *rabble rabble*
As an argument for patents all you have to do is look at the middle east. The cradle of life is still barely pulling itself out of huts. They lack patent laws, and even though they have had civilizations there longer than anywhere else in the world they hardly have advanced. Almost all of their technology has been imported.
Re: Middle East
The reason why the third world is the third world is because of the criminality. Their economies are basket cases because every time there is some money to build a business or build some infrastructure, some crook steals it. Usually, that is the criminal gang running the country. Money is continually diverted from investment to consumption (by the thieves). Nobody can “get ahead” without being subjected to a robbery. Economists call this “poor capital formation”.
Getting the thieves enough under control, so that investment can be successful, is the crucial thing that has made the first world prosperous. The patent system is actually damaging to investment, so it is on the side of the thieves not on the side of the builders of the economy.
Re: Re: Middle East
You almost had it, and then you lost the plot in your last sentence.
Patents clearly is designed to promote investement, in part by defining a way that investors can profit from inventions and new ideas. It helps to keep the theives under control, and as such, allows for “capital formation”.
You were doing so good until you got the the conclusion.
Re: Re:
The Egyptian, Persian, and Ottoman Empires would seem to disagree with that. The Middle East has spent more centuries as the center for human growth and advancement than any where else. The current state of things is only because of changing political climate of the last 1000 years or so.
Re: Re:
As an argument for better education all you have to do is look at your lack of understanding of the difference between correlation and causation.
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Nonsense! As a devout pastafarian I embrace the FACT that the global warming is caused by the decline in caribbean pirates!
The curves match! THERE CAN BE NO DOUBT!
RAMEN! RAMEN! RAMEN!
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If she weighed the same as a duck… she’s made of wood!
http://www.darpa.mil/NewsEvents/Releases/2011/2011/06/24_DARPA%E2%80%99s_Defense_Manufacturing_Efforts_Support_White_House_Vision.aspx
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Re: Re:
The power of humanity unleashed.
Imagine what we could do if we cooperated.
Irrigating the deserts to once and for all solve starvation in the third world? Not a problem if a few billion people are willing to take a one-week vacation and do some manual labor.
Multiplicantion can yield powerful results.
Re: Re: Re:
…and spelling errors can yield powerful lol’s.
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This is all great, but now try adapting it to a system that is MILSPEC compliant. That is not going to be crowd-sourced because only a very few have the capability to do so.
Patents PROMOTE innovation - it always has !
Mike do you notice the massive contradiction that is proposed by the original article, from Patrik Faltstrom, whoever he is and whatever he has to do with invention or innovation. (apart from making contradictory statements).
What qualifies him (or you Mike) to be able to make informed comments regarding innovation or invention ?
Faltstrom Myth 1:
Nobody would invent anything if they couldn’t patent it
Well that is plainly WRONG, as people invent things all the time, and they do not seek patents for.
Faltstrom Myth 2: (that contradicts myth 1 !!!)
Patents drive innovation
(patents BAN innovation).
But wait if you are correct with myth 1 then how can myth 2 be accurate.
A patent is, by its very definition, something that bans the entire world except the patent holder from building and improving on a particular innovative step.
You might want to revise your understanding of the definition of a patent.
As that definition is complely false at the least, and a complete lie at best.
So if I patent the internal combustion engine, that means by your ‘definition’ no one else can “build or improve on that innovative step”… what crap.. and anyone who things that, and especially anyone willing to state that in writing is quite franky a clueless person, or is totally dishonest and willing to lie to get their point across..
Very much like what Mike appears to do for a living.
Here is a very simple and also VERY COMMON sequence of events that leads to innovation, BECAUSE OF PATENTS … NOT inspite of them..
Parallax.. Well known for its successful basic Stamp IC, has recently produced the PROPELLER:
a new microcontroller a certain difference.
It packs no less than eight 32-bit processors into a single package……. WITH THE HARDWARE BEING DESIGNED FROM SCRATCH STARTING AT THE TRANSISTOR LEVEL. THE BASIC IDEA BEHIND THAT WAS TO AVOID BECOMING INVOLVED IN ALL SORTS OF PATENT DISPUTES WITH OTHER MANUFACTURERS…..
THE RESULT IS ASTOUNDING…………….
Re: Patents PROMOTE innovation - it always has !
Darryl, you’re completely misreading EVERYTHING in the article. When Falstrom says that “Nobody would invent anything if they couldn’t patent it”, he is saying that this is a myth and gives reasons why. Let me clarify:
Falstrom says: people will invent things even if you can’t patent them… patent-supporters state the opposite and that is the myth.
Same thing with myth#2… Falstrom believes that patents stifle innovation… again, supports state that patents promote innovation and Falstom is stating that this belief is wrong.
Better?
Patent Myths
This is a naive analysis of the reason for patents. The main reason for patents is that it offers protection to the patent holder to make his proprietary information public. Indeed, it requires the information to be made public. Once the information is in the public domain then further innovation can occur.
Another reason is to offer financial incentives via protection to companies in those industries where economic regulatory barriers, as in the pharmaceutical industry, would be a disincentive to innovation. Further, Congress has extended the patent life for the pharmaceutical industry to spur research and development in the search for new therapeutic discoveries.
One can not analyze an economic and legislative solution through the blinders of one particular industry.
Re: Patent Myths
Looks like talking points.
Re: Patent Myths
The main reason for patents is that it offers protection to the patent holder to make his proprietary information public
This was addressed by the article. It’s easy to reverse engineer a piece of equipment. Making the inventor reveal his secrets is not really an issue.
Another reason is to offer financial incentives via protection to companies in those industries where economic regulatory barriers, as in the pharmaceutical industry, would be a disincentive to innovation.
Reality is that most of the money the companies spend is on marketing and a very small amount on research. Furthermore, almost all the new drugs introduced have very marginal, if any, benefits over previous drugs.
The analysis applies to all industries that use patents. Companies are motivated by profits. If they can get the money through seeking rents, they will do that rather than innovate.
Re: Patent Myths
Extending the patent life for pharmaceuticals has also had a disincentive effect on creating cures for diseases rather than simply treating the symptoms. Seriously, do you ever expect to see a cure for cancer or any other long-term debilitating medical condition? Until the pharmaceutical industry is no longer motivated simply by profit margins and on-going revenue, it will never happen.
invented anything?
“Patents do not drive innovation”
How would you know? Have either of you ever invented anything?
Call it what you will…patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: ?we?re using your invention and we?re not going to pay?. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.
Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don?t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.
For the truth about trolls, please see http://truereform.piausa.org.
Patents and myths
Pegging on an extreme position again!
I totally agree that large entity patents, by and large, stifle innovation. That is what they are intended to do, to “protect” a business model. I know of NO cases where they have driven innovation, or even encouraged new ideas.
Small entity patents, which is IMO what the founders intended (they evidently saw the risks we now have realized in large entity patents, but also saw the benefits of a properly done IP system), definitely encourage innovation. One of my clients told me “I can’t proceed on this until we have filed a patent; I would simply lose the money I must put into it to develop it.”
I have seen this again and again; true innovation can be expensive and take a lot of time; and if you can’t protect it for a reasonable time, you are far better off letting the idea die.
The people Andrew Carnegie stole “his” steel making process from learned that the hard way.
Oh, wait! No one studies history – that’s why they are “doomed to repeat it”.
creativity
Everyone knows that patents serve to limit marketplace competition; indeed, that is part of the point of patents in the first place. But I don’t agree that they necessarily serve to ban improvements. In fact, the creativity involved in the process of “inventing around” a patent has immense potential to boost innovation. Isn’t that what Steve Jobs admittedly did in his quest to improve upon a more user-friendly personal computer? It’s what truly creative people do all the time.