New Study Shows Patent Laws Spur Patents; Report's Authors Pretend This Means Innovation

from the they're-not-the-same dept

Slashdot points us to an article about a new research report, commissioned by a biotech trade group that argues the evidence shows that patents spur innovation, rather than hinder it. However, as some quickly noticed, the report has severe methodological flaws, starting with the fact that it seems to use patent activity as a proxy for innovation. So, it argues that stronger patent law creates more patents (or more funding of patents or more sales/licensing of patents) -- and then claims that clearly there's more innovation. But we already knew that patent laws spur patents. The question -- not answered in the report -- is about the actual impact on innovation.

Just as an example, the report provides some case studies from different countries. In one of them, it talks about how Taiwan basically took the US' Bayh-Dole Act, which encourages the locking up of university research... and shows there was much more patenting afterwards. The report discusses how "impressive" this is:
A 2010 study of the effects of this legislation on university patenting activity provides a concrete and detailed example of the positive effect the introduction of technology transfer mechanisms can have. The study examines patents granted to 174 Taiwanese universities during the period of 2004 to 2009 and compares this to the period preceding it. Strikingly, the study finds a sharp and sustained increase in university’s patenting activity: patenting increased from 446 patents in 2004 to 1,581 by 2009. This is an impressive increase of 354%. As importantly, apart from a slight drop in 2007, this growth has been progressive and sustained year after year.
Yup. So patent laws that expand the coverage of what's patentable and provide incentives for more patents... increase the number patents. What does that say about innovation? Abso-freaking-lutely nothing. And, in fact, if you look at the actual research on the impact of Bayh-Dole in the US, while it similarly increased patent activity, it didn't increase research, and actually held it back. This is because university research is meant to be shared and meant to be discussed and to have others work on it. That's how great research is done: with lots of sharing of information and ideas to spark new thinking. But the Bayh-Dole Act basically told researchers to shut up, keep things secret, and patent the results. Because of that there are a lot more patents, but a lot fewer real breakthroughs, because you no longer have the same information sharing, discussion and openness that created true innovation in the past.


Reader Comments (rss)

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  1.  
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    silverscarcat (profile), Jun 28th, 2012 @ 3:06pm

    Patents DO increase innovation...

    So long as you're a lawyer, politician or a Patent Troll.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Jun 28th, 2012 @ 3:08pm

    What would be a good metric for innovation

    I agree that patent count is a bad metric. What would be a good metric for a results-oriented policy maker to look to? Anyone have any suggestions?

     

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  3.  
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    :Lobo Santo (profile), Jun 28th, 2012 @ 3:16pm

    Re: What would be a good metric for innovation

    Manufacturing.

     

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  4.  
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    Mike42 (profile), Jun 28th, 2012 @ 3:28pm

    Re: What would be a good metric for innovation

    Research and Development spending in the industry.
    You can't innovate if you don't try...

     

    reply to this | link to this | view in thread ]

  5.  
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    Anonymous Coward, Jun 28th, 2012 @ 3:36pm

    If patents are such a great idea, why was it that the movie studios had to form way on the other side of the continent to try to avoid the patent system in oder to innovate?

    And how is it that Benjamin Franklin, despite being opposed to patents in general (and despite the fact other occasionally patented his work and profited off them) was still able to amass a pretty decent income over the course of his lifetime?

     

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  6.  
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    Maclypse (profile), Jun 28th, 2012 @ 3:42pm

    Statistics...

    Statistics can be a dangerous thing. It's bad when the author spouting statistics don't understand cause and effect or math in general, but far worse when they manufacture misleading statistics on purpose. It's always nice to see make-belief "proof" go up in flames like this, but the sad fact is this: the original report will surely be regurgitated by big media as truth, but the criticism of it will in all likelihood not even merit a comment. People believe what they read, especially those that can't spot errors in logic or math.

    Whenever I see this kind of report I always wonder: are they stupid or deceitful? I don't much like to think about that, as neither is appealing. It gets worse; I always have to decide on whether I'm a judgemental cynic or a paranoid conspiracy theorist.

    These days, I'm leaning towards paranoia.

     

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  7.  
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    Anonymous Coward, Jun 28th, 2012 @ 4:22pm

    Re: Patents DO increase innovation...

    Patents are good for lawyers, lobbyists, and politicians.

     

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  8.  
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    MrWilson, Jun 28th, 2012 @ 5:38pm

    Re: Re: What would be a good metric for innovation

    Well, that may only work for some things. R&D costs for a basement start-up that ends up innovating a lot could be negligible. Would you factor pizza and beer into the R&D costs for Facebook at its dorm room inception?

     

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  9.  
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    Anonymous Coward, Jun 28th, 2012 @ 5:53pm

    Re: Re: Re: What would be a good metric for innovation

    Sorry to post anonymously, but facebook doesn't equate to innovation. There were dozens if not hundreds of "facebooks", which all copied and iteratively built upon the platforms of their predecessors. I'd hardly consider this innovation.

     

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  10.  
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    Anonymous Coward, Jun 28th, 2012 @ 6:16pm

    Re: What would be a good metric for innovation

    A timeline showing, the path of invention to market, showing market penetration of the invention, costs and social benefits?

    One thing I am sure there are no single points alone that can measure that crap.

     

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  11.  
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    Anonymous Coward, Jun 28th, 2012 @ 6:18pm

    Re: Re: Re: Re: What would be a good metric for innovation

    Before the iPhone there were dozens if not hundreds of phones which all copied and iteratively built upon the platforms of their predecessors, I'd hardly consider this innovation.

    See how that works.

     

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  12.  
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    Horsetooth (profile), Jun 28th, 2012 @ 8:58pm

    Commercial vs University sponsored innovation - mixing metaphors

    The fundamentals are flawed in this report and emotions run high in the responses. In the commercial world, patents ARE a good measure of innovation and serve as the sought after means of sharing. The stated purpose of a patent is to TEACH (the innovation). In exchange, a limited monopoly is afforded by the Constitution.

    Bringing University behavior into the discussion is “mixing metaphors”. The article is correct in emphasizing that University research is meant to be shared. Unless the University is entirely privately funded they have no business treating their results as private property (e.g. registering a patent). Commercial funding toward public University research (via private grants) should be treated like any other form of donation. Expected returns relate to improved conditions, more robust economy, vibrant competition, and better educated participants.

    So – bashing the patent system because Universities have turned back on their mandate to share, collaborate, and otherwise elevate the collective knowledge in favor of raising revenues via a mechanism intended to promote sharing in the commercial world would seem a rather misplaced argument.

     

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  13.  
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    MrWilson, Jun 28th, 2012 @ 9:39pm

    Re: Re: Re: Re: What would be a good metric for innovation

    Innovation is not just creating something new as if from a vacuum. It is renewing old concepts in new forms. Facebook was an innovation expressly because it succeeded where others had failed, even as much as I dislike that it did succeed.

    It's still innovation, regardless of whether you consider it to be or I like its result.

    But that was just one example to make my point. Google was a small operation initially. So were several other innovative companies. Microsoft and Apple. Pick one. "Innovation can start in the basement with a minimal budget" is all I was trying to say.

     

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  14.  
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    Mike Masnick (profile), Jun 29th, 2012 @ 12:19am

    Re: Commercial vs University sponsored innovation - mixing metaphors

    In the commercial world, patents ARE a good measure of innovation

    Really? Any proof?

     

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  15.  
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    Anonymous Coward, Jun 29th, 2012 @ 12:34am

    Re: Statistics...

    More like elementary arithmetic problem. If something increases from 446 to 1581 that is a 254% percent increase, not 354%. I don't trust that this report is built on proper statistics understanding if they can't get their arithmetic right.

    But my beliefs don't really change that this report will be used to push for more monopolies.

     

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  16.  
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    maclypse (profile), Jun 29th, 2012 @ 1:02am

    Re: Commercial vs University sponsored innovation - mixing metaphors

    In the commercial world, patents ARE a good measure of innovation and serve as the sought after means of sharing. The stated purpose of a patent is to TEACH (the innovation).

    Y'know, Imma side with Mr Masnick here and ask "where's the proof?"

    As far as I can tell, "patents means innovation" is the industry's standard claim, a claim that's been under attack for a long time, and a claim that still doesn't have any believable research to back it up.

    The question of whether patents hinder or encourage innovation has been a long running debate, on techdirt and elsewhere. The fact that the industry likes to use patents as a measure of innovation means that they have already decided that yes indeed, patents lead to innovation, but no matter how much they want it to be true, or how much they claim it to be true, or how many times they reiterate their view - none of it makes it true. Repeating an opinion over and over can sometimes make people think of the opinion as truth, but not everyone falls for it.

    So, we end up where we always end up: where are the factually correct independent reports that says patents increase research, invention and more breakthroughs? I still haven't seen it. I doubt anyone can produce such research with a straight face.

     

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  17.  
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    WordPress Girl, Jun 29th, 2012 @ 6:28am

    Of course...

    Of course... it's so logical...

    1 + 1 = 2, therefore all birds are blue

    Makes perfect sense.

    Seriously, anyone who believes that patents = innovation is a IP fanboi - and an idiot (either by birth or self-infliction).

    Proof: Was there innovation before patents? Yes. If patents were gone tomorrow, would there continue to be innovation? Yes.

    End of Story.

    Patents = Patents. They are monopolies. They create an artificial "protection" for someone who either thought of the idea first, or was the first to patent it. This "protection" doesn't PROMOTE innovation, it stifles it.

    Too many companies sit back and lounge about on their butts, fat and lazy with their patent portfolio.

    Patents REDUCE competition. COMPETITION promotes innovation. Patents therefore REDUCE innovation.

     

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  18.  
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    Anonymous Coward, Jun 30th, 2012 @ 8:05am

    Re: Commercial vs University sponsored innovation - mixing metaphors

    What?

    When you're doing a study on whether patents are good for innovation you obviously can't use patents as the measuring stick.

    The problem is that If we innovate more without patents such a methiod will end up with pro patent results regardless because the more innovative country still has less patents.

     

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  19.  
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    Horsetooth (profile), Jun 30th, 2012 @ 12:26pm

    Re: Commercial vs University sponsored innovation - mixing metaphors

    We probably all know that Article I, Section 8, Clause 8 of the US Constitution established patent and copyright …
    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    You have to at least ask “why?”.

    I think it is a fairly obvious deterrent to innovation if you must pour your genius, time, energy and money into innovation with no way to protect from someone else simply waltzing in and replicating it, offering you no recognition (e.g. licensing revenue) in return.

    Would you?

    Why, as you suggest, would any “research” be required to assert the above? And, if we had research on the topic, who would fund it, what answer would they be looking for and how would that influence the outcome? When responses ask for “proof” (that patents are a good measure of innovation) I think they are really trying to debate whether some alternative system might accelerate innovation or yield higher caliber results. That is a different question. As it stands, if I want to reap any reward from my innovation, I should protect it. I do this by filing a patent application. Thus (and I’m just using simple math here)… the number of patents is a good measure of the degree of innovation.

    There are plausible concerns regarding the state of the patent system. Non-practicing owners (trolls) create an imbalance overlooked by Constitution. Large concentrations of patents by some companies are viewed as impenetrable by the garage inventor. The ability of the USPTO to keep up with technology and the notion of quotas which may result in inferior teachings or unwarranted grants can become a real problem.

    It is always healthy to debate, progress, resolve and change. My critique was in response to the article which I (still) believe makes an inappropriate comparison, somewhat implies that public institutions are (or should be) more adept at innovation than individuals or commercial endeavors, glosses over the fact that patents are established in the Constitution to promote innovation, cross circuits the logic that Universities SHOULD share (but choose to patent) while companies are meant to COMPETE (so the patent system offers protection in exchange for teaching).

    Perhaps I need to re-read the article more carefully but unless I can understand how opinions expressed on the topic relate to the basic facts it is hard to acknowledge in any credible fashion.

     

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  20.  
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    Anonymous Coward, Jun 30th, 2012 @ 1:45pm

    Re: Re: Re: Re: Re: What would be a good metric for innovation

    To everyone who replied: We're looking for a better metric than patents. I'm not saying that R&D spending the only way to innovate, I'm saying it's a quantifiable number which is more representative of innovation than patents.

     

    reply to this | link to this | view in thread ]

  21.  
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    Horsetooth (profile), Jun 30th, 2012 @ 9:31pm

    Still don't get it. Show me a commercial environment where R&D spending is not highly correlated with numbers of patents filed. Doubt you'll find one anywhere. If your point is that public University R&D is not (should not be) correlated with patents, again, no argument from me. Public institutions carving off such assets should be illegal in my opinion. Still sounds like your point is that a better model for innovation is public funding vs commercial. Why not encourage both? If you agree but feel we are lacking a good metric for innovation stemming from public funding... I think I finally see your point (and probably agree). I stand by my position that, in the commercial world, patent do encourage innovation and form a decent metric as well.

     

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  22.  
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    Anonymous Coward, Jul 1st, 2012 @ 2:57am

    Re:

    Patents are a terrible metric if we're comparing innovation with patent law versus without because there are no patents without patent law.

    Thus a study that relies on nuber of patents filed to determine amount of innovation will always fall on the pro patent side regardless of the reality.

     

    reply to this | link to this | view in thread ]

  23.  
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    Anonymous Coward, Jul 1st, 2012 @ 3:01am

    Re: Re: Commercial vs University sponsored innovation - mixing metaphors

    People pour their time, energy and genius into things replicated all the time.

    Inventions where the inventor did not patent the invetion, programmers who release their work under open source licenses artists who release under CC-BY-X-X and just plain old freeware.

     

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  24.  
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    Anonymous Coward, Jul 1st, 2012 @ 3:06am

    Re: Re: Commercial vs University sponsored innovation - mixing metaphors

    I should also point out the many companies that invest money and software developers into Free (as in speech) Software

     

    reply to this | link to this | view in thread ]

  25.  
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    Horsetooth (profile), Jul 1st, 2012 @ 3:14pm

    Re: Re: Commercial vs University sponsored innovation - mixing metaphors

    We are all free to make whatever choices we decide. If giving away your works brings you satisfaction, have at it. There are plenty of hobbies, clubs, resume fillers, marketing feelers and other forms of hopeful reciprocity. No company ever invests without a business plan. Sometimes "goodwill", open source, open standards and the like become a less tangible component but they serve a purpose that supports the business.

    I think patent bashing is misguided. I think the conversation is really about public vs private funding for innovation. I don't think there is any question, in the private sector, patents are a good tool for protecting and, therefore, a good metric for innovation. Segmenting the use of public funding for research vs aid programs vs infrastructure etc is a completely different topic. The two got crossed when Universities began filing patents, which was a slippery slope.

     

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  26.  
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    Anonymous Coward, Jul 2nd, 2012 @ 2:40am

    Re: Re: Re: Commercial vs University sponsored innovation - mixing metaphors

    Did you just skim the article?

    If patents actually hinder/don't help innovation then a study won't show this if we use patents to measure it.


    Plus patents will stop any innovation other will built on top of it that's not approved by te patent holder, so they can themselves hinder innovation until the expiration date.

     

    reply to this | link to this | view in thread ]

  27.  
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    Horsetooth (profile), Jul 2nd, 2012 @ 12:24pm

    Re: Re: Re: Re: Commercial vs University sponsored innovation - mixing metaphors

    First, I think the article, many of those who are commenting and myself agree that the results of public funded University research a) is more powerful when shared and b) should not be patented. So we come to the same conclusion. But I prefer to get there w/o "throwing the baby out with the bathwater".

    Patents, in the commercial world, are indeed highly correlated with R&D funding and, therefore are a viable metric for commercial innovation. A patent is, by definition, a mechanism for sharing. Many many patents are improvements on "existing art". Because enterprise is motivated by the opportunity for profit, the existence of "prior art" (patents) is not a deterrent but just another element in the businss equation. Companies recognize the likelhood of infringment while in robust pursuit of similar product development goals and decide to come to the table to reach agreement on the exchange value of a cross-license. They are then able to practice one anothers patents and move forward, competing and innovating.

    The publicly funded (University) model for R&D should not even intersect with the Constitutional notion of patent protection. If we could see this, we could stop bashing the patent system an focus attention on improving models, metrics and incentives for colloboration among Universities that would elevate the practice to a more effective level.

     

    reply to this | link to this | view in thread ]


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