The recent patent wars, culminating in the Samsung vs Apple litigation, have involved many big names ; Microsoft, Oracle, Sun, and others. More than a few takeovers have been for the sole purpose of accumulating patents ownership to use as commercial weapons. Judgements have been issued that stall the sale of products in various countries, and the whole effect seems to be to slow the uptake of technology.
In this context many have suggested that the whole patent system is broken.
It could be taken further and, in the context of the GFC, the question raised as to how well the western capitalist societies are actually serving us. That question might take some studying, but the patent system, with the premise of ownership of ideas, is certainly a product of it.
Implicit in this concept of ownership of intellectual property is the idea that it may be asserted for financial gain – it is quite normal for the ideas to be available, at a price i.e. licensing fees Indeed patents systems actually incorporate such a concept in their operation, even to the extent of “standards-essential patents”; This is where an industry standard encompasses technology that is the subject of a patent - the holder of the patent is then required to license the patent at a reasonable price to those wishing to observe that standard in some implementation (Mueller, 2001).
Many observers commenting on the popular notion that the whole patent system is “broken” have reached the conclusion that it is not the system per se that is at fault, but the specific process of granting patents. (Patel, 2012) This came to a head in the recent Apple vs Samsung litigation, where Samsung has argued that the granting to Apple of patents over the rectangular shape and rounded corners of a mobile phone was contrary to any reasonable concept of genuine invention or indeed innovation.
These questionable affirmations of IP may have a wide impact, given that the U.S.A is trying to negotiate even more extreme parameters to the scope of patents in a gobal context. An example of this is the TPP (Trans Pacific Partnership) which the U.S.A. is seeking to join under conditions including an expansion of the period over which a pharmaceutical patent is held being increased from 20 to 30 years.(WSJ, 2012).
We may soon see whether or not the U.S. is motivated enough to make radical changes to their patently flawed system.
REFERENCES
Patel, N. (2012) The 'broken patent system': how we got here and how to fix it. downloaded 23/8/12 from http://www.theverge.com/2011/08/11/broken-patent-system/
Mueller, J.A. (2001) "Patent Misuse Through the Capture of Industry Standards", 17 Berkeley Tech. L.J. 623 .(2002) Downloaded from http://www.law.berkeley.edu/journals/btlj/articles/vol17/mueller.pdf
WSJ.(2012). Should Patents on Pharmaceuticals Be Extended to Encourage Innovation?
Wall Street Journal, January 23, 2012. downloaded 25/8/12 from http://online.wsj.com/article/SB10001424052970204542404577156993191655000.html?mod=wsj_share_in_bot
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ReplyDelete"Such histrionics, however, ignore a crucial but little known fact: Throughout American history, the buying, selling, and litigating of patents has always been essential to U.S. economic success. Not only that, the truth is that today’s patent litigation rate is less than half what it was in the mid-nineteenth century, a period widely recognized as the golden age of American innovation.
REF: "No, the Patent System Is Not Broken" - http://www.forbes.com/sites/forbesleadershipforum/2012/02/09/no-the-patent-system-is-not-broken/
Another advantage of the patent system is that fact that you have to publicly publish your ideas. This has often lead to others using your ideas to develop a useful product.
ReplyDeleteWe don't know what we would be missing today without the patent system and the security it offers the developers ideas!
Kerryn you make an interesting point about the patent system as a locus for the publication of ideas.
ReplyDeleteand no, we don't know what we would be missing without the patent system, but my guess would be a faster rate of progress, and a few less lawyers in the world.