Where do great ideas come from? A popular notion among creativity experts is that recombination of preexisting ideas in a new context is the form that most if not all creativity takes. One more datum: Courtesy of my lovely wife, it seems that George Lucas may have been voguing, so to speak, when he came up with one of his most iconic images.
The patent system is “a real chaos”. Its faults were laid bare yesterday in an extensive New York Times article, which quickly reached the “most emailed list” (The Patent, Used as a Sword; and see Melissa Schilling’s review). But the same article also hedged by reminding us “patents are vitally important to protecting intellectual property”. But is intellectual property really essential for innovation? For an answer, look just a little past commercial software and you will see vast open collaboration without patents or copyright. Wikipedia, an open initiative, answers many of our questions. Open source software such as Linux and Android power most commercial websites and mobile devices, respectively. In myriad forums, mailing lists and online communities, users contribute reviews, provide solutions, and share tips with others. Science has been progressing by enlisting thousands of volunteers to classify celestial objects and decipher planetary images. Innovation without patents is real. Researchers estimate that open collaboration and user innovation bring more innovation than than the patented kind. Our legal and commercial system can do more to encourage it.
A great New York Times article this morning (link below) details ways in which the patent system gets used as both an offensive and defensive weapon, with billions of dollars of collateral damage to start-ups, consumers (see the “patent tax”), and innovation in general. The victim in the opening Vignette (Vlingo, a voice-recognition software start-up) might have been saved by a simple change in the rules: make the losers of patent lawsuits pay the legal costs of the winner. It turns out that it’s rather easy to kill small firms (or force them to sell to you) by launching a patent lawsuit against them that bleeds them dry with legal fees. You don’t have to win — you just have to force them to fight until they no longer have any money. Vlingo ultimately won the patent lawsuit that had been filed by a much larger rival, but had to loot its own meager coffers to pay the legal fees of doing so. Vlingo slumped home with its patent lawsuit victory and shut its doors for good. If losers of such battles paid the legal fees of winners, such fights might both be less common, and less likely to be fatal.
The article also points out that software patents have proven particularly dangerous because they are prone to protecting vague claims like “a software algorithm for calculating online prices,” thereby granting the patent holder vast tracks of technological real estate. An interesting talk by Tilo Peters at the Strategic Management Society conference yesterday points to another useful tool for rationalizing some of this misuse of the patent system: Strategic disclosure. If, for example, you decided to publish a manifesto about all of the things you might do with software in the reasonable future (remember patents have a “usefulness” condition so you’re not allowed to claim something deemed non-feasible), you might be able to essentially proclaim that technological territory as unpatentable. It wouldn’t prevent competitors from developing in those areas, but it could keep them from patenting in those areas. In essence, it transforms a space in which property rights may be allocated into one in which property rights may not. I’ve left out some details but you get the idea.
Now it occurs to me that a fair amount of strategic disclosure in the smart phone space took place in the form of Star Trek episodes. I’m going to go look for references to prior art…
Alex Tabarrok’s pictorial commentary on patent policy, drawn on a napkin, posits that the current patent system is somewhat too strong and thereby decreases innovation (the link to his original post is below). I have to say, however, that I don’t think patent strength is the problem. The problem is that the growth in patent applications over the last two decades has vastly exceeded the growth in resources available to the patent office, resulting in 1) long delays between patent application and granting (which can render patents completely pointless in fast moving industries), and 2) inadequate ability to examine the patent applications for novelty, usefulness and non-obviousness. This lowers the value of good patents (because they aren’t granted quick enough or may be fallaciously challenged) and increases the likelihood of bad patents being granted. As a result, for many individuals and firms, the expected net gains from manipulating the patent system for the purposes of extortion (hostage taking, patent trolling) now exceeds the expected net gains from using the patent system to actually innovate.
It’s difficult to assess how patent strength affects innovation without first making sure that patents are being granted and used the way the system had originally intended.
Alex Tabarrok’s original post can be found here: http://marginalrevolution.com/marginalrevolution/2012/09/patent-theory-on-the-back-of-a-napkin.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+marginalrevolution%2Ffeed+%28Marginal+Revolution%29
I recently discovered I am an academic fraud. Now, I am sure there must be people out there whose immediate response is “of course you are”, “knew it” or “I am not surprised”, but I was.
Admittedly, what amounts to fraud when publishing as an academic isn’t always entirely clear to me – which, to some,will probably suffice to consider me suspect already (if not guilty-till-proven-innocent). I do get the extremes: If one writes up a truly new academic study giving the full account of the research underlying it, it ain’t fraud. If you make up the data – emulating the now infamous Diederik Stapel – it is. But sometimes in between, I am not always sure… Let me give you a few potential examples.
- Earlier this month, at the Editorial Board Meeting of the Academy of Management Journal, the editor reported that the journal would now start screening every submitted article for plagiarism. The software turns up whether parts of the text have been copied from earlier publications, including articles by the same author (in a case of self-plagiarism). After this, a fellow board member asked “can we access the same software to pre-screen our own articles before submitting them?” There wasn’t a murmur or hint of discontent in the room following this question, but I found it strange and uneasy. If you copy a piece of text, then pre-screen it and the software tells you you would be found out, you rewrite it a bit plugging in a few synonyms here and there and then it is ok and no longer considered fraud and plagiarism?!
- Geert Hofstede, one of the most highly cited social scientists ever (citations are considered a signal of “impact” in our academic world, and I seem to remember him once telling me that he had more citations than Karl Marx…), became famous for developing dimensions of national cultural differences. He published these dimensions left-right-and-centre – in academic journals, magazines and books – which greatly contributed to their and his exposure. He nowadays would be covered in tar and feathers and chased out of the ivory tower for self-plagiarism?
- Situation A: PhD student A copies a paragraph leading up to one of his hypotheses from a working paper by someone else he found on the web, without citation. Situation B: PhD student B copies a summary of a previously published academic article from a third, published paper that summarised the same article. Situation C: likewise, but with a citation to that third article, but no quotation marks. Situation D: likewise, but with citation and quotation marks. Who should get kicked out of the programme? At London Business School we have already dealt with situations A and B (the students were chased out), and D of course, but I am left wondering what we’d do in situation C.
- An academic – and an obvious fan of the Matthew Effect – buys 20,000 followers on Twitter. Yes, if you didn’t know, buying (fake) twitter followers is possible and easy. In fact, yesterday, I learned it is as cheap as chips. Yesterday, the Sunday Times covered the tale of an aspiring English celebrity who bought about 20,000 followers on Twitter to boost her profile. It just cost her a few hundred pounds/dollars. And, in fact, it sort of worked; she did raise her profile. But when she was found out – which isn’t actually that easy – she was ridiculed and quickly chased back to the dubious and crowded ranks of the British B-celebrities. But what would we do? How would we react to an academic buying 20,000 “followers”? Tar and feathers or applause for bringing the Matthew Effect to practice?
I am – apparently – a shameless self-plagiarising fraud because I sometimes get approached by business magazines who say “we read your blog post X and would like to republish it in our magazine”. And if they’re half decent (even by business magazine standards), I tend to say “yes”… In fact, I sometimes make the suggestion myself; when some magazine asks me “would you like to write an article on X for our wonderful magazine?” I usually say “no (way), but chapter X from my book would suit you well. Feel free to republish that”. Some acknowledge it was previously published; some don’t.
And, frankly, I don’t really care, and I will probably do it again. If it is my work, my copy-right, the magazine is fully aware of it, and it doesn’t harm the reader (they will know if they’ve seen it before, and otherwise they probably didn’t, or they might suffer from an enviable dose of business magazine amnesia), I won’t fear or dodge the tar and feathers. In fact, who knows, you may have read this very same post before!
I read about Microsoft’s acquisition of patents from AOL with some interest. They note that this reflects a price of $1.3M/patent and compare it to other recent escalations in the IP arms race. Analysts estimate that Google only paid $400k/patent in the $12B acquisition of Motorola Mobility. Nortel patents recently went for about $750k each. Of course, given the wide variance in the value of a patent, clearly the average is not particularly informative — it treats all of these patents as homogeneous which is certainly not the case. Nevertheless, the escalating prices do suggest that the arms race is unlikely to create much value for the firms (and certainly not for consumers).
However, buried in the stories is another rather interesting observation – some of the key players earn more from selling rivals’ handsets than their own. Read the rest of this entry »
The title of this post is from the opening line of this article: McGowan, D. 2011. The Tory Anarchism of F/OSS Licensing. University of Chicago Law Review.
The article goes against current academic wisdom (Lessig et al) and argues that freedom actually gets restricted in open source licensing — specifically the freedom of authors (rather than users). An interesting piece, worth reading. Here’s the abstract:
This Article uses the example of free and open-source software licenses to show that granting authors relatively strong control over the modification of their work can increase rather than impede both the creation of future work and the variety of that work. Such licenses show that form agreements that enable authors to condition use of their work on the terms that matter most to them may give authors the incentive and assurance they need to produce work and make it available to others. Such licenses may therefore increase both the amount of expression available for use and the variety of that expression, even if enforcement limits the freedom of downstream users. These facts give reason to oppose recent decisions that make license terms harder to enforce through preliminary or permanent injunctive relief.
A shot across the bow in the New Criterion by James Panero:
For those of us who watch from the sidelines, the Occupy Wall Street movement may appear sympathetic to our own concerns. At the very least, it seems to offer a safety valve for others to vent their frustrations. Yet the history of idealistic occupations suggests this will also end poorly, with a polarized public and the movement collapsing in ruin.
Like the Commune, Occupy Wall Street is about the perfection of itself rather than the reform of others. This is a reason that the Occupationists differ from other protesters who go home at the end of a long march. For the Occupation, the tents do not come down until perfection is attained or destroyed.
The heart of OWS is therefore in its internal mechanics, especially its strictly “non-hierarchical” code of conduct. The manifestations of this code might appear foolish, but they emerge from a formula meant to challenge if not supplant our current system of government with the Occupation’s own forms of egalitarian command and control, a formula that grOWS ever more doctrinaire and insular for those who practice it. Many of these devices are still being developed in the “General Assemblies” of Occupationist cells. OWS already employs several to limit open speech, especially when the purity of the Occupation is confronted by the impurities of our existing laws and precedent.
From my perspective the reason why the “free/open source” movement succeeded is because they stopped protesting and started coding – i.e. they focused on developing solutions. Richard Stallman created two brilliant hacks – the GPL – an IP license that allowed sharing & GCC – the compiler. Solutions not protest!
The most recent issue of Yale Law Journal has a nice piece by Jonathan Masur on patent inflation (here’s the pdf). There’s no question the system is broken: patent thickets are a problem, anticommons are an issue, and some patents are plain ridiculous.
The piece is worth reading – it covers Bilki’s attempt to patent hedging risk, the problem of assessing usefulness and novelty, the scope of what is patentable, the problem of patenting process and software, etc.
Here’s the abstract:
For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular failings. First, the PTO grants significant numbers of invalid patents, patents that impose substantial costs on innovative firms. And second, over time the Federal Circuit has steadily loosened the rules governing patentability, allowing ever more patents over a greater range of inventions. This Article argues that both of these modern trends may be attributable in whole or in part to the asymmetric institutional relationship between the PTO and the Federal Circuit. If a patent applicant is denied a patent by the PTO, she can appeal that denial to the Federal Circuit. However, if the PTO grants the patent, no other party has the right to appeal. Accordingly, the PTO can avoid appeals and reversals, both of which are costly in monetary and reputational terms, simply by granting any patent that the Federal Circuit might plausibly allow. Because the PTO will grant nearly any plausible patent, the vast majority of rejected applications that are appealed to the Federal Circuit will concern boundary-pushing inventions that are unpatentable under current law. Occasionally, a particularly patent-friendly panel of Federal Circuit judges will elect to reverse the PTO and grant a patent that the Agency has denied. The Federal Circuit’s decision will create a new, inflationary precedent. The boundaries of patentability will expand slightly, as this new precedent exerts influence on the other circuit judges. And as the Federal Circuit’s conception of what may be patented expands, the PTO will similarly inflate its own standards in order to maintain an adequate margin for error and avoid denying a patent that the Federal Circuit is likely to grant on appeal. Patent law will thus be subject to a natural inflationary pressure.
I love that there are patents like this – an IBM patent for “an integrated framework for analyzing a firm in terms of its resources, capabilities and strategic positions, providing a Strategic Capability Network composed of nodes signifying these resources, capabilities and strategic positions, together with relationships between these nodes.”
Here are the full details on US patent # 6,249,768 at google patents. Read through the patent document – it is inclusive of citations to work in SMJ and other journals. And, this particular ‘strategy’ patent has also been referenced by many other patents.