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.

Filed Under: disclosure, patents

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  1. identicon
    Todd, 17 Aug 2007 @ 12:06pm

    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.

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