Faculty denounce patent law
Boldrin and Levine, chair of the Department of Economics and professor of economics at Washington University, respectively, make their claims in the book “The Case Against Intellectual Monopoly” and more recently in “The Case Against Patents,” a working paper for the St. Louis Federal Reserve.
Their arguments center on the fact that patents have cluttered the legal system to the extent that they actively inhibit the progression of innovations they are intended to facilitate.
In recent years, patent trials have risen in number as well as prominence across the United States. According to Levine, cases such as the highly-publicized legal battle between Apple and Samsung, in which Apple won over $1 billion across 86 infringements, demonstrate that patents aren’t critical to spur innovation.
“The money that [Apple] made, they made without patents. Now that they can’t stay ahead anymore, now they’re suing everybody,” Levine said.
Levine also highlighted that patents are primarily used defensively in the technology industry.
“That’s why Google bought Motorola. Not for its telephones, but for its patents. And it bought it for its patents not because it wanted to sue Apple and to try to get Apple out of the market,” Levine said. “They bought its patents so as to try to create a credible threat to prevent Apple from suing them. There’s no mystery in this. This defensive purpose of patents is well understood by everyone in the industry.”
The legal gridlock reached as a result of opportunistic patent wars even sparked U.S. Court of Appeals judge Richard Posner to write, “Why there are too many patents in America” in The Atlantic Monthly earlier this year. In the article, he argues that industries have different needs for patents, but patent law is uniform across industries.
Like Posner, Levine emphasized that in industries like technology, the cost to innovate is quite low, but the patent system is set up to be zero-sum.
“If all the patents were enforced, nobody would be able to write a computer program. It’s complete madness. Any piece is relatively inexpensive to develop. The big reward is not in the patent,” Levine said.
Keith Sawyer, professor of psychology and education at Washington University and author of “Explaining Creativity: The Science of Human Innovation,” also takes issue with the patent system.
“There’s literally thousands of patents and each one is on a tiny thing. And then what happens is it becomes impossible to generate a successful product without infringing on someone’s patents. There’s no way one company could have them all,” Sawyer said.
Sawyer suggested that the current patent system is incoherent considering how people maximize innovation.
“What makes innovation most effective is when small ideas beget other ideas. The ideas build on each other, they kind of grow and become bigger to be greater than the sum of the parts,” Sawyer said.
However, the elimination of intellectual property protection that Levine suggested is too extreme for Sawyer.
“I believe you’ll get more innovation if people who come up with ideas get some money for them. I think it’s good to have intellectual property protection,” Sawyer said.
On the other hand, Wrighton sees the benefit of intellectual property as enabling the sale of ideas to companies or start-ups so that they can quickly reach more people.
“It’s often the case that a potential investor…[is] going to want to know that if they access the intellectual property that they will have a degree of exclusivity in terms of being able to realize the financial benefit that comes from developing and commercializing the product,” Wrighton said.
Wrighton noted the relatively small size of patent income relative to the University’s operating budget.
“We don’t plan for big financial success, but we need to have the environment where that becomes possible if the right thing comes along,” Wrighton said. “We’ve had significant patents, but in the year that just concluded, the total revenue, including what goes to the inventors, was something like $6 million.”