Via Andrew Sullivan -

Ideologically diverse commentators are in agreement that today's patent system harms both innovation and competition.

The Economist headlines 'Patents Against Prosperity'.

Kevin Drum at Mother Jones rails against patent overreach as well.

Congress is still bought and paid for by the patent industry - but could we at least be witnessing a grass roots convergence against patent overreach from both sides of the political spectrum? If we could at least get a consensus to explicitly ban software and business method patents, that would be a start on desperately needed reforms.

I think what we are seeing here is a potential start of the start...which in and of itself is a start.

Leave it to the Federal Circuit to do all it can to keep expanding patentable subject matters to their broadest possible reaches.


Patently-O blog has a useful summary of the decision here:

http://www.patentlyo.com/patent/2011/07/federal-circuit-isolated-human-dna-molecules-are-patentable.html

The lengthy court decision can be found here:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-1406.pdf

[Updated note: I would particularly recommend that you Judge Bryson's persuasive dissent in the opinion, starting at pg. 87 in the PDF document.]

Timothy B. Lee at Forbes doesn't pull any punches: 'The Supreme Court Should Invalidate Software Patents'

Plaintiffs' Attorney Max Kennerly: 'Patents are granted too easily and then patent infringement suits are too expensive to defend.'

The excellent and insighful piece from This American Life which John Bennett pointed to on this site earlier is getting a lot of (mainly positive) reaction from several heavy hitters throughout the web.

Masnick at Techdirt: http://www.techdirt.com/articles/20110724/22250715225/when-patents-attack-how-patents-are-destroying-innovation-silicon-valley.shtml

Felix Salmon: http://blogs.reuters.com/felix-salmon/2011/07/25/the-cost-of-patent-trolls/

Matthew Yglesias at ThinkProgress: http://thinkprogress.org/yglesias/2011/07/25/277901/this-american-life-on-patent-trolls/

Andrew Sullivan: http://andrewsullivan.thedailybeast.com/2011/07/shaking-down-innovation.html

They command the eyeballs of a lot of influential people. But you can still color me cynical that any rational leadership will come out of Washington on this issue.

Felix Salmon link here goes after Andrew Ross Sorkin for his attack in the New York Times on the banks that successfully used their lobbying power to get Congress to exempt them from business-method patents link here. Sorkin's beef is that the banks have enormous political power, based on their political contributions, while defending such patents as having been successfully blessed by our courts.

Salmon agrees that the banks have great political power but emphasizes the whole questionable field of business-method patents and comes out opposed. More broadly, he objects that we have too many questionable patents and way too much litigation that drives up costs, while adding no benefit to consumers.

It is nice to have another blogger on this side of the argument. More and more are joining the chorus.

The Economist ran an editorial last week that promoted innovation and jobs by fixing the patent review backlog with more money link here.

In response, David and I submitted the following letter to the editor:

"The assumption of your editorial (Patently Absurd, May 5) that patents foster innovation is wrong. All the constantly growing evidence shows that patents hurt rather than help innovation. To be sure, in the US patents are required by law to be original, useful, and not obvious. When hundreds of thousands are being issued each year, that beggars credibility. Instead, the patent system fosters endless efforts to hijack the profits of successful innovators, generates endless time consuming costly litigation and worse, leads to monopolization with the concomitant expensive products - and indeed discourages real innovators.

"This isn't merely a matter of theory, nor yet one of empirical studies - although both are in plentiful supply: you might take a look at the many references in Against Intellectual Monopoly by Boldrin and Levine. But more to the point: why don't you talk to engineers and venture capitalists - or even patent examiners? Or at least read the comments they left on your website? You will find that they too view patents as time-wasting defensive operations that provide little protection to real innovators and instead serve merely to protect entrenched monopolists and encourage patent trolls. You are right that the present patent system is broken, but your proposed cures will only make matters worse."

As do Joel and his coauthors. I've long wondered about the role of "mechanics" and other tinkerers - if you ask me why not the industrial revolution in Rome my answer would be: not enough of the low level tinkerers needed to make technology take off. I'm glad to see some careful research into this.

The Rate and Direction of Invention in the British Industrial Revolution: Incentives and Institutions by Ralf Meisenzahl, Joel Mokyr

Abstract:

During the Industrial Revolution technological progress and innovation became the main drivers of economic growth. But why was Britain the technological leader? We argue that one hitherto little recognized British advantage was the supply of highly skilled, mechanically able craftsmen who were able to adapt, implement, improve, and tweak new technologies and who provided the micro inventions necessary to make macro inventions highly productive and remunerative. Using a sample of 759 of these mechanics and engineers, we study the incentives and institutions that facilitated the high rate of inventive activity during the Industrial Revolution. First, apprenticeship was the dominant form of skill formation. Formal education played only a minor role. Second, many skilled workmen relied on secrecy and first-mover advantages to reap the benefits of their innovations. Over 40 percent of the sample here never took out a patent. Third, skilled workmen in Britain often published their work and engaged in debates over contemporary technological and social questions. In short, they were affected by the Enlightenment culture. Finally, patterns differ for the textile sector; therefore, any inferences from textiles about the whole economy are likely to be misleading.

Also only a paywall copy.

Petra and her coauthors continue to acquire evidence about the efficacy of patents.

Did Plant Patents Create the American Rose? by Petra Moser, Paul W. Rhode - #16983 (DAE PR)

Abstract:

The Plant Patent Act of 1930 was the first step towards creating property rights for biological innovation: it introduced patent rights for asexually-propagated plants. This paper uses data on plant patents and registrations of new varieties to examine whether the Act encouraged innovation. Nearly half of all plant patents between 1931 and 1970 were for roses. Large commercial nurseries, which began to build mass hybridization programs in the 1940s, accounted for most of these patents, suggesting that the new intellectual property rights may have helped to encourage the development of a commercial rose breeding industry. Data on registrations of newly-created roses, however, yield no evidence of an increase in innovation: less than 20 percent of new roses were patented, European breeders continued to create most new roses, and there was no increase in the number of new varieties per year after 1931.

Sorry, this is behind the NBER paywall and I can't locate a free copy.

Dear Professors Boldrin and Levine,

We are writing to you regarding your book, Against Intellectual Monopoly.

We have both enjoyed, and been stimulated by, your book, and are in considerable agreement with your overall thesis that intellectual property protection is not conducive to technological innovation, at least not in the way claimed in standard economics. One of us has found it an invaluable help in teaching and research.

However, we would like to bring to your attention some facts about the invention of the radio, which you discuss in chapter 8 of the book. In it you refer to Hong's work and mention the roles of Lodge, Tesla and Popov in undermining Marconi's claim to be the inventor of the device, but not the role of Jagadis Chunder Bose.

>From the very beginning Marconi was mired in controversy regarding his claim. The question was reconsidered in the early 1990s by Phillips (1993), who concluded that Marconi did not invent the detector that he claimed to have developed. However, Phillips was unable to locate the true inventor of the so-called "Italian navy coherer". The mystery was resolved in a paper by Probir Bandyopandhyay, who provided convincing evidence that the real inventor of this device was Jagadis Chunder Bose, Professor of Physics at Calcutta University (Bandopadhyay, 1998). The device is described in a paper that appeared in the Proceedings of the Royal Society (Bose, 1899). In fact, somewhat earlier, Bose had developed what seems to be the world's first solid state diode detector for radiation and presented his findings at the Royal Society, London, on January 28, 1897. A report of this presentation appeared in the Proceedings of the Royal Society (Bose, 1897).

The centennial of this last paper was celebrated in a special section attached to the special edition of the proceedings of the Institute of Electrical and Electronic Engineers commemorating the fiftieth anniversary of the invention of the transistor (IEEE, 1998). The papers by Bose, as well as that of Phillips, are reproduced in that publication. A brief summary of these developments appears in Mervis and Bagla (1998).

We find it extraordinary that Hong is apparently unaware of the IEEE publication. Although Hong does cite Phillips's paper, we find that he does so in a somewhat misleading way and makes only cursory references to Bose. In particular, he does not refer to the crucial papers of Bose cited above.

We hope you find these observations useful. We believe that they not only serve to debunk the claims of Marconi's priority, but also to provide another illustration of the fact that inventions do occur without the protection of intellectual property.

Sincerely yours,

Samir Bose Professor Emeritus Department of Physics

Amitava Krishna Dutt Professor of Economics and Political Science Department of Political Science

University of Notre Dame, Notre Dame, IN 46556

References

Bandyopadhyay, Probir (1998). "Sir J. C. Bose's diode detector received Marconi's first transatlantic wireless signal of December 1901 (The "Italian Navy coherer" scandal revisited), in IEEE (1998).

Bose, Jagadis Chunder (1897). "On the selective conductivity exhibited by certain polarizing substances", Proceedings of the Royal Society, vol. LX, no. 366, 433-36, reprinted in IEEE (1998).

Bose, Jagadis Chunder (1899). "On a self-recovering coherer and the study of cohering action of different metals", Proceedings of the Royal Society, vol. LXV, no, 415, 165-72, reprinted in IEEE (1998).

Institute of Electrical and Electronic Engineers (1998). Proceedings of the IEEE, Special Issue: 50th anniversary of the transistor, including a special issue section: Centennial of semiconductor diode detector, January.

Mervis, Jeffrey and Bagla, Pallava (1998). "Bose credited with key role in Marconi's breakthrough", Science, Vol. 279, p. 476.

Philips, Vivian J. (1993). "The Italian navy coherer affair: a turn of the century scandal", Proceedings of the IEEE, Series A, vol. 140, no. 3, 175-85, reprinted in IEEE (1998).

The Times editorializes today on the urgent need for patent reform, but it is only likely to make the problems worse link here . Its issues with patents include award to the first to file rather than first to invent to bring us into line with the rest of world, the slowness in issuance, the amount and costs of litigation, and the large and growing backlog of applications. The Times seems to feel that the problems will be solved by allowing the Patent Office to keep all the fees it charges and to allow small businesses and inventors to file a low cost preliminary application in order to get a place in the queue.

There is no real discussion of the constitutional grounds for patents being their encouragement to innovation or the product of patents in the creation of more large monopolistic businesses.

As it stands, these measures may go through because business wants them, and its interests are reflected in the views of both parties. Too bad.

But the fact that the Times peddles propaganda like this shows how badly the media have been brainwashed by the self-serving big business propaganda that patents promote innovation, contrary to much evidence.