Whose idea is it, anyway? 'Bounty hunters' track the validity of patents
Patents have been essential to ensuring innovation. But the US may be fencing itself in by putting too many new developments under patent protection.
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But now some critics are concerned that the innovative American economy is fencing itself in.Skip to next paragraph
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"It's clear that there is a danger," says James Boyle of Duke University Law School, emphatically. The problem, he says, is that so much innovation is being put under patent protection that inventors, to stave off the threat of costly patent-infringement litigation, often end up entangling themselves in an expensive web of licensing arrangements to protect themselves as they work on new products.
What ticks off tinkerers like Duane are patents that, as he sees it, prevent him from taking things apart and experimenting. "It's as if the hood of your car were welded shut, and if you opened it up, you could go to jail."
Professor Boyle uses the metaphor of "the second enclosure." It's a reference to a period in English history, from the 15th century until the 19th, when agricultural land once held in common was being fenced off for private property. The process was known as the enclosure movement.
Gross dislocation of landless peasants and other woes ensued. But from an economic perspective, it worked: Clarity of property rights and ownership led to great gains in agricultural productivity.
Today's common grazing land is a territory of ideas, "the commons of the mind," Boyle argues, where the ownership model doesn't apply, because ideas can be held - and used - by more than one party.
Similarly, Christine Peterson, director of the Foresight Institute, a technology think tank in Palo Alto, Calif., and a member of the "Open Source" school of thought, thinks the patent system has been overextended - not just in volume but in kinds of patents.
The US economy has prospered, she says, in part because of the strength of its property rights, including patent rights. "We have deeply learned the lesson of private property ... but we've gone too far. As far as I can see, the property rights model works with physical things, but not ideas. We're pretending they can't be shared."
She lists several new classes of patents that she finds problematic: Business-method patents, such as Amazon.com's famous patent on a one-click online purchase system; patents on plants, genes, and software. Her suggestion: Keep the system for mechanical inventions intact but roll back provisions allowing for patents in these newer classes.
Patent skeptics, such as Boyle and Peterson, argue that to treat ideas like physical things - "rounding 'em up and branding 'em like cattle" - is to deny everyone the full benefits of an economy based on infinitely sharable ideas. The patent advocates counter that it is precisely because so many of today's new products are almost pure "idea," with little physicality, that robust patent law is necessary.
New York patent attorney Steve Bazerman puts himself in the latter camp. "I deal with a lot of companies that have only one asset: intellectual property." Everything else "they farm out," he says. "Even a company like Ford is basically trademarks and a design center - and they're a hard-goods company!" Other megabucks sectors of the American economy are even more ethereal, he suggests.
This is the situation that Charles Cella ventured into a little over a year ago to launch Bounty Quest.
The idea is pretty simple: Interested parties who want to challenge a given patent pay to post on the company's website a bounty (typically $10,000) payable to anyone who can find "prior art" showing the patent-holder didn't get there first.