Who said that the purpose is to promote innovation?
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In a June 6, 2006 posting on IPFrontline, Professor Thomas G. Field noted of the book by Professors Jaffe and Lerner: The 2004 book, Innovation and Its Discontents, has received too much attention to ignore.
Professor Field also observed: "On balance I am anything but contented with Innovation and its Discontents. Those who share my belief that two relative newcomers have little grasp of key problems, much less meaningful solutions, should not stand silent."
There has been some discussion of Innovation and Its Discontents on IPFrontline. Nevertheless, on February 15, 2007, Professor Jaffe, and others, testified before Congress on what is wrong with the patent system, but those with differing views were not heard. One cannot but note the irony in a previous statement by Jaffe and Lerner: "Whatever the solutions, when issues of US patent policy are considered by the courts, the Congress, and the executive branch, you can be sure that the opinions of patent lawyers and patent holders will be heard."
[Patent Medicine, 82 Harvard Business Review 25 (Nov.2004).]
There is a basic misperception within Innovation and Its Discontents. The authors do not acknowledge the fundamental quid pro quo of the system: information disclosure, of the type defined by Congress, by the patentee in return for a right to exclude for a limited period of time. The patent system gives to the public information, not innovation. This information may lead to a commercial product and innovation. Most frequently, it does not. Congress has never required that the patent applicant give evidence that the invention can be commercialized. Congress gives the inventor a right in return for information, and the inventor uses that right in the free market, which market determines what can be commercialized.
Curiously, a recent law review article contains the text: "Certainly, the theoretical and policy justifications for a patent system are to promote innovation," citing as authority Innovation and Its Discontents, rather than any statute, case law, or legal text. Moreover, in a February 24 editorial (LINK HERE), the Los Angeles Times asserted: "The purpose of patents, like copyrights, is to promote innovation by giving inventors exclusive rights to use and distribute their creations for a limited time."
This is wrong. The purpose of the patent system is to promote disclosure of inventions by offering an inventor a right to exclude for a limited time in return for a disclosure which meets the requirements of patent law. These requirements include utility, novelty, and nonobviousness, but not "commercializability." The Los Angeles Times also noted: "Patent holders stay on the sidelines while large companies build the market for a technology, then the patent holders claim that their rights have been infringed and demand compensation." In a system wherein public disclosure of information promotes progress, it is the duty of the "large corporation" to evaluate that which is written down and publicly available so that precious resources are not wasted re-inventing the wheel. Those who fail to learn from the past, or steal from the past, should earn no sympathy.
If one looks within the Executive Summary of the Federal Trade Commission [FTC] report, one will not find a statement to the effect that the purpose of patent law is to promote innovation. The first sentence of the Executive Summary states that "Innovation benefits consumers through the development of new and improved goods, services, and processes."
The Summary also notes that both competition and patent policy can foster innovation, and that a failure to strike an appropriate balance between competition and patent policy can harm innovation.
In Bonito Boats, the U.S. Supreme Court noted "The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies" and the Court also noted that it is for Congress to determine if the present system effects the goals. In J.E.M. Ag Supply, the Supreme Court noted that "The disclosure required by the Patent Act is the quid pro quo of the right to exclude." In Eldred, the Supreme Court noted that immediate disclosure is not the objective of, but is exacted from, the patentee. It is the price paid for the exclusivity secured.
In the article "The Nature of The Intellectual Property Clause: A Study in Historical Perspective"
(83 JPTOS 763), Edward C. Walterscheid notes that "on its face the purpose of the clause is to promote the public interest through an increase of the public domain or commons of intellectual ideas and thought." He also observes -- The modern view that "the patent law is directed to the public purposes of fostering technological progress, investment in research and development, capital formation, entrepreneurship, innovation, national strength, and international competitiveness" would have been almost completely foreign.
To solve problems with patent law, one has to understand how patent law functions. The public gets its benefit by obtaining information which meets the requirements of patent law. If these requirements aren't being met, the proper resolution of the problem is to make sure the requirements are met during the initial patent examination. As W. Edwards Deming
wrote: Cease dependence on inspection to achieve quality. Eliminate the need for inspection of a mass basis by building quality into the product in the first place. It is ironic to note that many of those who complain about a lack of patent quality ignore the precepts of quality. [See also, Lawrence B. Ebert, On Patent Quality and Patent Reform.]