A reader writes:
Do both Lee and Yglesias understand the reason for patents? Yes, a patent gives the inventor the exclusive right to use his/her work for umpty-ump years. But it also allows the inventor to lease those rights to others, for an amount agreed upon by the inventor and the would-be user, until the patent expires. Yes, the world is a better place because Microsoft, Google, and Samsung used concepts created by Apple. But they did so without paying Apple for the right to use those concepts, and without so much as an open acknowledgement of Apple's creation of those concepts. Mr. Lee did use the right word – those concepts were stolen, and the word doesn't need to be put in
quotes.Then again, these days, if your corporation is big enough, you don't need to bother with patent law or ethical use. You can just hide behind your phalanx of attorneys and play a delaying game until your opponent either goes bust or gets so tired they quit fighting.
Another insists that "Apple shouldn't have been granted the 'slide to unlock' patent in the first place." Another:
As a patent law professor, I feel compelled to respond to this item.
Timothy B Lee and Yglesias argue that society is better off when good ideas can be used freely, and that is certainly correct on one level. But it does not follow that we should restrict or eliminate the patent laws, the existence of which arguably encourages the development and commercialization of those very good ideas. It is way too simplistic to say that because competition is good, copying of ideas should be allowed. The appropriate question is how we can create systems to encourage the development and dissemination of good ideas, which then can be expanded and built-upon by others. In broad strokes the patent laws try to do this, albeit I would be the first to suggest that they do so very imperfectly.
One frustration about public discussions of the patent system is a conflation of the policies underlying the system with the administrative implementation of those policies. The US Patent and Trademark Office grants about 250,000 patents per year. Thousands of these are granted even though they do not meet the standards for patentability (indeed, about 35-40% of all patents that are litigated in court are found to be invalid, though because of selection bias, this does not mean that 35% of all patents granted are invalid).
This is a very serious problem, and generates enormous costs for society. The reasons are complex and multifaceted – lack of resources, terrible incentives for patentees, administrative incompetence, and even political pressure all play a role. Looking at the posts you linked to, it appears that this was the original objection to Apple's slide-lock patent – various commentators claim that it already existed in the 'prior art'. If so, then the patent is likely invalid. (I do not know.) But even if true, that doesn't tell us much about whether the patent system could work well, given serious attention to it's administrative failings.
It is fashionable in the software industry in particular to take the view that new ideas should not be patentable because the world would be better off if those ideas were free to all. But that is a little like walking into a grocery store and making the claim that those delicious steaks should be free for all because we would all be better off. This makes sense only if you ignore that those steaks exist in that refrigerator case because of significant (and often risky) investments by a chain of private actors, and that without a fair return on the investments, there won't be steaks in the case in the future. Unfortunately, this is indeed the position that much of the high-tech industry has taken with respect to patents, typified by the ludicrous "patent reform" law signed by President Obama in September – a series of changes that simultaneously fails to address any of the causes of the problems with our patent system, while offering giveaways to those who infringe patents. Sadly, lobbying and manipulation of public opinion works, even in the technocratic world of patent law.
Today, the US is the most innovative, intellectually dynamic country in the world, no question. But our standard of living increasingly depends on the ability to develop and commercialize new ideas – and yes, "monetize" these ideas. The patent system, warts and all, underlies this innovative engine. We misunderstand it at our peril.
The Dish 