Intellectual Property Law

Do Patents Really Promote Useful Progress?

By Posted by Alan Wexelblat

The stated purpose of patents, as spelled out in the US Constitution is "to promote the progress of science and useful arts..." I've pointed out cases in the past where the way patents are granted and used is actually contrary to progress in the useful arts I practice. Now a pair of researchers have published a paper in Columbia Science and Technology Law Review called "Patents and the Regress of Useful Arts."

In this paper, the authors report on a simulation they conducted to examine the behavior of potential patent holders and competitors under a variety of condition. The PDF of the full paper is available from the bottom of that linked abstract page. They compared situations involving patents (exclusive rights) against two non-patent situations - commons and open source. The surprising result (to Copyfighters) is that open source produced inferior results to a pure commons system given how the authors measured innovation, productivity, and societal utility.

As with any simulation, it's certainly possible to argue with the parameters of the model, the experimental set-up, and the interpretations of the results. In addition, the game results may be biased by the selection of players who, in this case, were incoming law school students. It's also unclear whether any game of this sort can capture all of the motivations for patenting as they exist in the real commercial environment. People get patents to protect their own inventions or to restrict competition, of course, but they may also seek patents for purely secondary purposes, such as improving their bargaining position with larger rivals or with venture capitalists. Of course, you could counter-argue that none of that is really useful progress as conceived by the framers of the Constitution.

(Full disclosure: the second author of this paper was a grad student at MIT while I was there and remains a friend and professional colleague. For whatever reason, he didn't mention this work when I saw him back in April. I found this publication through the blog of a mutual friend.)

Full post as published by Copyfight - The Politics of IP on July 07, 2009 (boomark / email).