RE: Science Magazine article: "Promoting Intellectual-- Discovery: Patents Versus Markets"

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Sent by: Brian Kahin --=====================_71736934==.ALTContent-Type: text/plain; charset="iso-8859-1"; format=flowedContent-Transfer-Encoding: quoted-printableAt 11:08 AM 3/21/2009, Branscomb, Lewis wrote:>The patent system as established in the=20>Constitution is designed to promote disclosure=20>in order to advance the breadth of technical=20>knowledge =96 itseelf an objective more important=20>than protection of inventor rights. =C2 Would a=20>market based system provide the same disclosure=20>incentive? I doubt it.=C2A knapsack game test=20>cannot evaluate the long term value of the patent system.It is worth pointing out that the disclosure=20function, despite being part of the rationale for=20the patent system, fails miserably in practice,=20at least in IT, and especially in=20software.There are a variety of reasons for=20this.Everybody acknowledges that the risk of=20willful infringement is a problem, altho less of=20one than it used to be.Claims are written to be=20broad and ambiguous and are often virtually=20unreadable.The quality of patents is low and=20there are far too many of them.Developers don't=20create software by readling literature.It's=20much more of an art (and therefore appropriately protected by copyright).>>However the short term economic value of the=20>patent system is still important, but not=20>equally for all areas of technology [vital for=20>biotech, inappropriate for most software, easily=20>reverse-engineered for much of electronics] or=20>for all times from conception to mature industry=20>[vital to keep angel investments lively, where=20>establishing a protected market must be=20>realistic in only a year or two, but=20>increasingly irrelevant when mature commodity=20>industries value standards more than design differentiation =96 screw= threads].>>How to design a patent system that accommodates=20>those differences is a mystery.=C2=C2Mark Lemley and Dan Burk have a book coming out=20on the subject, The Patent Crisis and How the=20Courts Can Solve It:=20http://www.press.uchicago.edu/presssite/metadata.epl?mode=3Dsynopsis&bookkey==3D385019=20(A needlessly offputting title -- nice to know=20that somebody else will take care of the problem=20-- in stark contrast to Bessen and Meurer).They=20believe that patent provides a number of policy=20tools to adjust for industry differences, that=20the Federal Circuit tries to use them without=20explicitly acknowledging it, and does a bad job=20of it. Early work on this can be found at:Burk, Dan L. and Lemley, Mark A.,Is Patent Law=20Technology-Specific?. Berkeley Tech. Law Journal,=20Vol. 17, p. 1155, 2002. Available at SSRN: http://ssrn.com/abstract=3D349761The difference between industries was almost=20invisible to the policy community until stark=20differences in perspective emerged in the 2002=20FTC/DOJ hearings.(See chapter 3 of FTC report,=20To Promote Innovation, Oct 2003)The differences have become politically manifest=20in the struggles over patent reform in the last=20three Congresses with the IT sector and most=20academics pitted against pharma, biotech, the=20patent bar, independent inventors, and other=20industries (at least as represented by their=20patent departments).At the moment, the big=20debate is over how to calculate damages, a=20problem that looks very different in a complex=20technologies such as IT where a patented function=20may represent only a tiny part of product value.I organized a conference on the subject as a=20whole in 2006:=20http://patentsanddiversity.comHard to elicit=20papers at the time, but some are available at=20http://www.mttlr.org/html/volume13issue2.htmlThe subject is the focus of the Blue Skies=20scenario in the European Patent Office's=20Scenarios for the Future:=20http://www.epo.org/topics/patent-system/scenarios-for-the-future.htmlBrian KahinAdjunct Professor & Research InvestigatorSchool of Information, University of Michigan304 West Hall, 1085 South University Ave.Ann Arbor, MI 48109-1092734-647-8034kahin@umich.eduhttp://www.si.umich.edu/~kahin/bio.htmlSenior FellowComputer & Communications Industry Association900 17th St., NWWashington, DC 20006202-783-0070 x101bkahin@ccianet.orgWyoming office: 307-455-2748--=====================_71736934==.ALTContent-Type: text/html; charset="iso-8859-1"Content-Transfer-Encoding: quoted-printableAt 11:08 AM 3/21/2009, Branscomb, Lewis wrote:80">Thepatent system as established in the Constitution is designed to promotedisclosure in order to advance the breadth of technical knowledge =96itseelf an objective more important than protection of inventor rights. =C2Would a market based system provide the same disclosure incentive? Idoubt it.=C2  A knapsack game test cannot evaluate the long term valueof the patent system.It is worth pointing out that the disclosure function, despite being partof the rationale for the patent system, fails miserably in practice, atleast in IT, and especially in software.  There are a variety ofreasons for this.  Everybody acknowledges that the risk of willfulinfringement is a problem, altho less of one than it used to be. Claims are written to be broad and ambiguous and are often virtuallyunreadable.  The quality of patents is low and there are far toomany of them.  Developers don't create software by readlingliterature.  It's much more of an art (and therefore appropriatelyprotected by copyright).80"> However the short term economic value of the patent system is stillimportant, but not equally for all areas of technology [vital forbiotech, inappropriate for most software, easily reverse-engineered formuch of electronics] or for all times from conception to mature industry[vital to keep angel investments lively, where establishing a protectedmarket must be realistic in only a year or two, but increasinglyirrelevant when mature commodity industries value standards more thandesign differentiation =96 screw threads]. How to design a patent system that accommodates those differences is amystery.=C2  =C2 Mark Lemley and Dan Burk have a book coming out on the subject, ThePatent Crisis and How the Courts Can Solve It:http://www.epo.org/topics/patent-system/scenarios-for-the-future.html

Brian KahinAdjunct Professor & Research InvestigatorSchool of Information, University of Michigan304 West Hall, 1085 South University Ave. Ann Arbor, MI 48109-1092734-647-8034kahin@umich.eduhttp://www.si.umich.edu/~kahin/bio.htmlSenior FellowComputer & Communications Industry Association900 17th St., NW  Washington, DC 20006202-783-0070 x101bkahin@ccianet.orgWyoming office: 307-455-2748--=====================_71736934==.ALT--