US5960411 A (One Click Shopping) Dies a year later (filed Sep 12, 1997)
A whole host of idiotic patents should be ending their life in the next several years.
This nonsense won't stop until we abolish patents. And we really need to abolish patents. Completely. The patent system can't be fixed.
http://www.google.com/patents/US6116545
http://www.space-travel.com/reports/Boeing_Patent_Shuts_Down...
But that was on Kerbal Space Program, and it is called the "mun". Not sure if Boeing has grounds to sue in this case.
Against Intellectual Monopoly, Michele Boldrin and David K. Levine, Professors of Economics, UCLA and Washington University, 2010, http://www.micheleboldrin.com/research/aim/anew.all.pdf
The paper describes how commonly cited "genius" inventions didn't come out of nowhere and are instead based on research and build-up of knowledge by multiple independent groups of inventors. Yet patents are often granted to one party as if they came up with something truly remarkable and original all on their own. This kills innovation and further research because the other parties cannot continue to improve on the work after a vital patent has been granted to someone.
This paper doesn't really advocate for total abolition, but that seems to me like an attempt at not coming across as too radical.
"It is often argued that the best case for patents is in the pharmaceutical industry. The fixed cost of innovation is large, with estimates of the average cost of bringing a single new drug to market as high as $800 million in current dollars... Indeed, according to industry surveys, the only industry in which patents are thought to play an important role in bringing new products to market is the pharmaceutical industry...
The pharmaceutical industry is a complicated beast to vivisect, which can be approached from many contradictory angles and viewpoints. We will stick to ours, narrow that it may be, and ask - how strong is the case for patents in pharmaceuticals? Is there substantial evidence that without patents we would not have the medicines we have, or at least we would have a lot fewer and worse medicines? Would the industry shut down and talent move to some other, more rewarding, enterprise if patents on drugs were more or less abolished, that is, if the world became like Switzerland until 1978 or Italy until a year later?"
1. He goes on and on about "patent theory", and it's worlds apart from how patent systems work in practice. His feeble connection is that practice is based on theory.
2. He cites a paper that directly contradict what he's saying.
2. a) He cites a paper to ostensibly support his theory that patent offices are pro-individual, but the reference actually says, without paraphrasing, "The patent laws do very little to prompt this view." It actually concludes that the lone-inventor rhetoric "has done little to stave off the increasingly anti-individual-inventor changes in substantive patent law."
2. b) He perpetuates the same "Watt stopped Steam" myth that Boldrin and Levine make. And to support this, he cites the Turner/Selgin paper that asserts precisely the opposite!
3. Further, regarding steam, he insinuates patent law didn't work as expected because Watt's patents promoted steam research by forcing workarounds. In fact, innovation through forced workaround has long been a known (though possibly post-facto) rationalization of the patent system.
4. All the examples he gives of "multiple independent invention" are actually examples of multiple individuals independently inventing different inventions. And he further proves it by saying that many of those inventors secured patents for their own inventions as well!
5. All the other parties working on the "genius" inventions did contribute to overall knowledge, but a) their work was not wasted since they did things differently, exploring the problem space further, and frequently got their own patents, and b) those inventions that ended up being remembered as genius were actually the commercially more successful ones, typically because they were either technically superior or their inventors were sharper businessmen.
6. He implies accidental inventions are less deserving of protection, completely omitting that those inventions all happened in labs or research environments by people who were actively experimenting.
Throughout this paper, Lemley consistently makes two mistakes:
* He conflates the broad “idea” of something with the specific implementation that makes that something work;
* He conflates popular narrative about patents with the patent system;
And based on these two, he enumerates flaws in popular narrative where most major inventions were not invented only by those that got all the credit.
And then he completely fails to show how this flawed narrative has anything to do with the patent system, which, by his very own examples, does reward individual and incremental contributions.
Just from that, it was difficult for me to take anything else they say at face value. To top it off, I just came across a reference [3] suggesting Boldrin and Levine's analysis of the dye market was inaccurate, and that patents actually played a big role in German dominance in the market.
The one thing I've realized from reading a lot of studies, anyone that makes a broad claim that IP if "all good" or "all bad" is wrong.
1. http://www.terry.uga.edu/~jlturner/StrongSteamApril2009.pdf
2. http://www.terry.uga.edu/~jlturner/WattAgainAug2009.pdf
3. "Recent Research on the Economics of Patents" - Bronwyn H. Hall, Dietmar Harhoff, Pg 13.
I'd love to see research proving patents do more good than harm (in any field).
This, by the way, is no means or excuse for some of the shenanigans drug manufacturers take part in. It merely is one illustration of why a patent system should exist.
If we look at industries with less regulation, like software, the necessity for a patent system is a lot less clear.
Software is a terrible example, since every story such as this one demonstrates how absurd and stupid software patents are. It is plain as day.
The big elephant in the room problem with patents on medicine, is that government trade the life of some poor people for the incentive that some people might be more willing to invest in medicine research with patents rather than without it. We don't even ask if there is an alternative ways for the government to intervene, and use an 200 year old approach which creates value by excluding people who can't afford to pay to get access to medicine.
When people builds nuclear reactors, we ask what the potential good vs the potential harm there is. If we don't people die, which is why there is regulations. With patents, we have chosen the path of causing deaths, and we don't even ask if the price tag is worth it.
Patents are much more 'powerful' than needed for pharma industry. They hinder good research by universities and other NGOs.
And of course: what proportion of drug development is to replace high earning drugs for which the patent protection is expiring. (ie "solved problems").
I am not convinced that the drug industry needs patent protection. I have a gnawing suspicion that we have reached a point where it might be a better idea to just remove patents and see where the chips fall.
Patent has good and bad. We need to balance the two. And believe it or not, when you face a lot of competitors, if your invention can drive them out, you'd want to patent that. This is just how business works. If patent is bad because everything should be open, then military inventions should be open too. It might sound extreme, but patent is the weapon businessman uses.
I was going to rifle through my vast collection of references to studies about patents, but I just came across a pretty good review of the research of economics of patents:
"Recent Research on the Economics of Patents" - Bronwyn H. Hall, Dietmar Harhoff (Google for PDF)
I'm still going through it, but it will give you an idea of what the current research looks like.
Here's the deal: Whether patents promote innovation, and whether their benefits outweigh the harms, are extremely difficult questions to answer. I mean, how do you even measure "innovation"? You could say by "counting patents", but that's simply a circular argument! Not to mention the complaints that many patents are low quality, or that companies like Twitter are regularly called "innovative".
So in absence of any direct indicators, what the vast majority of studies do is roughly this:
1. Pick a few metrics that act as proxies for whatever they measure (innovation, patent quality, economic benefit, economic harm, productivity, R&D efforts, etc.);
2. Gather data from which these metrics can be gleaned, typically constrained along many dimensions such as time, industry sectors, sources, etc. to make gathering it feasible. (Sometimes this step is actually optional and author outright just run simulations on what they think are "reasonable" approximations of data. Sometimes they don't even do that. In the paper above, they're referred to as "Theoretical Evidence");
3. Present a hypothesis;
4. Construct a model;
5. And test the model to see if their hypotheses stand up to the data or not.
And at each step they provide varying degrees of explanations of their methodologies, assumptions, controls, potential confounding factors, flaws in their data, and so on.
As you can imagine, it is rather difficult to make solid, generalizable conclusions. For one, the metrics may be pretty poor approximations. Or the model may be poor. Or the hypothesis may be flawed - an unfortunate problem with many studies is that they do not take into account changes in the legal environment (such as the changes wrought by the AIA and decisions like Medimmune v. Genentech) so their very premises are flawed.
Fortunately, many studies are all about finding flaws in other previous studies, so there's some semblance of balance.
Really, go through the paper above and the papers it cites, and you'll see why it's downright impossible to make broad assertions like "patents promote innovation" or "patents harm innovation".
I know someone who milked an obvious patent for the best part of 40 years and made a killing on it. People were paid to get the patent reissued and to chase down manufacturers for pay offs.
The patent (wait for it) was:
"the use of printed circuit boards in television sets".
Fortunately it was allowed to expire about 8 years ago when one of the manufacturers assembled a large legal team to claim prior art.
Before that, the only extension of the patent term was from 14 years to 21 years, which happened in 1836. In 1861, it was shortened to 17 years.
Realistically, the life of the average patent was not extended by this change, since patent apps, on average, were taking three years to approve.