Patents in Conflict

The WSJ has an article this morning that needs to be read. ADAM JAFFE and JOSH LERNER, two professors from Harvard and Brandeis have written a reprise of their book on Patents and what is wrong with the current system. From the article- the book merits some serious attention.

The book can be found at Amazon

I have watched with a combination of amusement and horror as Research in Motion has worked its way through the problems it faced with a small company that claimed RIM was stealing their ideas. My amusement was with my colleagues who are hooked on their Blackberrys - a technology I have so far avoided (one of the few) - fearing that their information tether would be shut down. My horror was with the very technical arguments about the fight that I am not sure I understood completely. This seemed like something I thought should not have been settled in a common court.

By analogy, the claims by RIMs antogonist seemed a bit of an over-reach. We work with a company that provides college information to prospective students that has been hassled by a rival for supposed patent infringements. The complaining company does not seem to have a real case - but their ability to tie up our supplier with this legal proceeding seems to be fundamentally negative.

In recent years we have read about bizarre claims of patents on products that were already ubiquitious or on processes that simply should not receive a patent. This set of issues comes back to the same ones admirably advanced by Lawrence Lessig at Stanford on copyright law. Copyright law was turned from its original purpose to something much more curious with a series of enactments that ended with the Digital Millennium Copyright Act (DCMA). My guess is that the evolution of patent law has taken a similar turn.

When Madison and Jefferson began the debate about intellectual property it was to aid in the creation of such goods. But the legallistic state of the current art goes well beyond what is desirable. I have read a lot about copyright law and am less well informed about patent law. But the picture looks very similar. Patent law, at least as it seems to be implemented seems to be mired in the twin perils of legal proceedings and bureaucratic response - neither is likely to assist in the development of a system which aids inventors and creators of ideas.

Jefferson had a great quote about the ownership of ideas - "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it." - Madison clearly sought to provide some limited rights for those ideas that could encourage people to create both writings and technological innovations. With our current system it is unclear whether the founder's goals can be achieved.