The Harm Caused By Patent Disclosure

from the willful-infringement dept

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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Comments on “The Harm Caused By Patent Disclosure”

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14 Comments
Todd says:

Re: Willy Wonka

I agree wholeheartedly. And of course, you can;t have enough fairy-dust cream filling. The problem is that the Oompah Loompah Workers Union has adopted the position that cowbell is not Green and therefore should be completely removed from Wonka products. Of course, the 800 pound gorilla here is that Oompah Loompahs are not green but in fact blue… this may put them in the ironic position of advocating their own dismissal.

The pay chaeck should rule out in the end.

IHatePatents says:

This is standard in some buisnesses.

Many of the game companies have rules in place about viewing patents. Electronic Arts first implemented draconian rules about patents about 6 or 7 years ago where discussion, pointing out of, or reading patents was considered a reason for termination of employment. They were getting sued on a weekly basis over one patent or another and I doubt things have changed for them in this area. Other jobs I’ve had since have much the same view of patents; let the lawyers do their thing and the tech folks stick their head in the sand and ignore patents.

Robert Inkol says:

Re: This is standard in some buisnesses.

I don’t doubt this. I work for a government R&D lab and have spent some time searching through patents related to my work. The reality is that a substantial proportion of patents that have been awarded in recent years are:

a. general descriptions of concepts that have been around for years or decades, but were never patented because they were considered to be obvious;
b. minor updates of an older concept by the straightforward application of a recent technology.

This situation has become really noticeable in defense technologies. I think one motivation is that, in some jurisdictions, government R&D contracts and procurements can be sole sourced on grounds of proprietary IP.

The bottom line is that significant ideas that are in a usable form aren’t that common.

Robert

Anonymous Coward says:

Wrong - both counts!

You said “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)”

That doesn’t make any sense – I wouldn’t be surprised if MANY potential inventions simply died before they were ever born because the person who thought up the invention didn’t bother to take the next step because they didn’t have the resources to bring it to market.

But, if that person patented their idea, then at least it’s out there for someone else to find who may think its a good idea and who has the resources to bring it to market.

You also said “So, the way you avoid that is you don’t look at any patents”.

Well, if a company would rather “risk” spending a ton of money on products without properly checking to see if that product is patented or not. Then, that’s their mistake and NOT the patent systems’!

Will Kill says:

No patents at all

The FACT is that fifty years ago there was no PATENTS at all. there were unusual and ridiculous system used only for patents related to military weaponry. and of course no one in those times could have imagined a MP3 patent, or a JPG patent, because there were no information industry at all.
What about patents that struggle in the midst of the military and civil patentings?..
The problem is that the US changed their patenting after few years of WWII to increase the fast adoption of patents bought to third parties, and those third parties now are being killed by the patenting system itself from the US, so we have a deal that some sort of change might be done?

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