The Economist Shouts: “Set Innovation Free!”

The cover story of this influential British magazine is “Set Innovation Free!”* The subtitle says what they really mean:

Time to fix the patent system.

In this blog, I’ve argued that the current patent regime retards overall innovation. It’s not aligned with empirical studies of creativity research. Patents are awarded to a single entity, as if that entity is completely responsible for the advance in knowledge. But research shows that all innovations are collaborative and distributed.

Defenders of patents will say: First, the potential reward of a patent provides an incentive to innovate. Why invest all the money in researching a new cancer drug if you don’t get the exclusive rights to market it? Second, in exchange for being granted a patent, you’re required to make your innovation public. This is supposed to help everyone else move forward faster with their own innovations.

The Economist  lead editorial argues that this is completely wrong. It cites evidence that, across industries and countries, stronger patent systems don’t lead to greater innovation. It points out that in most cases, patents never really become public, because patent lawyers have become very effective at writing complicated text that makes it impossible to tell what the real innovation is. Patents are expensive; it takes about $100,000 to go through the process of getting one. And yet, by some measures less than ten percent of these patents are ever used; the rest never make any money. So why spend the money to get patents? It’s subtle, but basically, it’s related to a finding from innovation research: that almost all new products involve tens, hundreds, of new ideas. New products are never  based on a single patent. So for lots of companies, filing a bunch of patents is a defensive strategy–it creates a “patent thicket” that prevents competitors from putting together all of the ideas they need to develop their own successful product. The current state of the technology sector is that all of the big players have their own patent thickets. So before anything new can be sold to the consumer, their lawyers have to get together and negotiate about their mutual patent thickets. (Yes, that’s the word that patent lawyers use–patent thicket. The fact that there’s such a word at all shows how big the problem is!)

The patent system rewards huge companies with deep pockets and lots of expensive lawyers. It blocks startups and entrepreneurs. Maybe there are exceptions? For example, pharmaceutical patents that emerge from university research labs, with a startup that’s funded by the university’s research office? But aren’t universities also big institutions with lots of lawyers? Patents do nothing for the little guy.

Patents are granted for too long. No technology company needs 20 years of protection for their idea. How many of you still own computers from 20 years ago?

Patents are granted for “new” “ideas” that are much too obvious: does Apple really have a patent on “rectangular tablets with rounded corners”? (Apparently, they do.) And yet, U.S. patent law says that to get a patent, your idea has to be non-obvious. I’ve written about problems with the non-obviousness doctrine here, and it’s a big topic of discussion among IP lawyers and scholars.

The Economist  cover story could be straight out of my book Group Genius:

Sharing brings huge benefits to society. Sharing leads to extra innovation. Ideas overlap. Inventions depend on earlier creative advances. There would be no jazz without the blues. Innovation today is less about entirely novel breakthroughs, and more about the clever combination and extension of existing ideas.

The chorus of creativity researchers shouts “Amen!”

*August 8-14, 2015 issue

The Airplane: Not Invented By the Wright Brothers

One of the most fascinating stories in patent law is now over 100 years old: the story about how the Wright Brothers tried to lock up all legal rights to human flight. I told this story in my 2007 book Group Genius, and I’ve just learned that Lawrence Goldstone has told a new version–in his forthcoming book Birdmen: The Wright Brothers, Glenn Curtiss and the Battle to Control the Skies, excerpted in the Wall Street Journal April 9, 2014.* In Group Genius, I use the Wright Brothers’ legal battles to demonstrate how “collaborative webs” are always more innovative than solitary lone geniuses. The Wrights tried to lock up the rights, and it ended up killing their own creative potential:

[In 1903] They didn’t get a patent for “flight”; they were granted a patent for their key innovation, a lateral control mechanism that steered by warping the entire wings forward or backward….Instead of showing off their new invention, they holed up in Dayton, refused to do press interviews, and wouldn’t let photographers near the farm field where they tested small improvements. On September 30, 2007, Alexander Graham Bell donated $20,000 to found the Aerial Experiment Association (AEA). Their goal was to win Scientific American magazine’s prize for the first plane that could fly a kilometer in a straight line. Their first plane was tested on March 12, 1908. It looked a lot like the Wright’s plane, but to avoid infringing on the Wright’s patent, it didn’t use wing warping for lateral control; instead, it used a system of trusses to curve the whole wing up or down. Casey Baldwin, an AEA member, designed the next plane; for lateral control, it used ailerons–small pivoting surfaces at the trailing edge of the wing. The third AEA project was Glenn Curtiss’s June Bug, and he flew it a mile and won the Scientific American trophy. The Wrights couldn’t even enter because their plane didn’t have wheels (they launched their plane from a special railroad track) and couldn’t take off from the field. When Curtiss started getting a lot of press attention, the Wrights filed a patent infringement lawsuit. They claimed their patent controlled all lateral steering mechanisms; if true, then no plane could ever fly without infringing the patent. In 1913, a federal court sided with the Wrights and ordered Curtiss to cease making airplanes using ailerons. Curtiss then built a different plane, based on an 1899 design by Samuel Pierpont Langley; now Curtiss could claim his idea came before the Wright’s patent, and the case dragged on into World War I. (pp. 189-191)

Because this legal fight blocked American innovation, the collaborative web instead kept innovating in Europe, where the Wright brothers weren’t able to enforce their patent. British, German, and French airplane industries were booming, with constant innovations leaving the Americans behind. In my public talks, I often show photos of the airplanes being built in Europe; they look like modern planes. Then, I show a 1914 photo of the Wright brothers’ plane; it has barely changed from 1903. In 1917, when the U.S. entered the war, the U.S. government forced the Wright and Curtiss companies to form a patent pool with open sharing.

Goldstone’s new book tells a portion of the story; I got many of the above details from Shulman’s 2002 book, Unlocking the Sky: Glenn Hammond Curtiss and the Race to Invent the Airplane. Goldstone notes that the Wrights were indeed granted a extremely broad patent, and the court upheld it in 1913. (I’ve read the court decision, by Judge Learned Hand; it’s, fascinating and it has lessons for today’s patent fights.) Goldstone concludes:

Nowadays, both the number and the nature of lawsuits involving software, hardware, and even design minutia are testament that patent law remains the damper on innovation that it was when airplane development was nearly grounded in its infancy.

*Goldstone, L. 2014. “How a Patent Fight Grounded the Wright Brothers.” Wall Street Journal, April 9, p. A13.

Intellectual Property Law Update

Today’s Wall Street Journal reports two new developments in U.S. IP law.

First, on Saturday March 16, the U.S. Patent and Trademark Office (PTO) is dramatically changing its patent system, from a “first to invent” to a “first to file.”* Under the old first-to-invent system, if you could document that you were the first person to come up with an idea, you got the rights to that idea–even if someone else had filed a patent for that idea first. So what’s wrong with that? It sounds logical: if you thought of it first, it shouldn’t matter that you didn’t run to the PTO before everyone else.

There are two problems: First, every other country in the world uses a first-to-file system, which means if you filed first for the patent on the idea, it’s yours, no matter who can prove they really thought of it two years before you did (from their lab notebooks or whatever). In an increasingly international economy, having our patent system align with the rest of the world is a big deal.

Second, under first-to-invent, imagine how complex the court cases get, when some inventor somewhere says that they actually thought of that idea five years ago. Then, lawyers are poring over old lab notebooks and reading hundreds of emails. It might sound simple: All you have to do is find the email that contains the idea on a certain date–but in fact, it always takes a lot of complex interpretation. Was this lab notebook sketch really evidence of the idea? Usually, it’s close but not quite exactly the idea that’s in the patent. Many inventors think their idea really was this idea, but everyone thinks their idea has a broader scope than it really does under patent law. Companies have been spending billions defending themselves against patent lawsuits, and this change is intended to reduce the litigation.

The second article** talks about copyright protection on sound recordings. The Library of Congress wants to convert their old (and decaying) sound recordings to digital, and then make these digital versions available to their patrons. And it turns out, that’s illegal for something like 177 years after the recording was originally made. The copyright protection even for the oldest recordings, made when the technology was first invented back in the 19th century, will not end until 2067 at the earliest. In Europe, in contrast, sound recordings enter the public domain 50 years after their initial release.

The more I learn about IP law, the more I realize it’s a huge complicated mess. I’ve been impressed with my IP law colleagues, negotiating complex issues at the intersection of law, economy, and psychology of creativity (hence my involvement with the issue). But as I concluded back in 2007 in my book Group Genius, patent and copyright regimes today are too restrictive, and this is reducing societal innovation.

*Ashby Jones, “Inventors race to file patents.” WSJ March 15, 2013, p. B6

**Terry Teachout, “Copyright protection that serves to destroy.” WSJ March 15, 2013, p. D6

Bringing Together Copyright and Patent Law

ALI 2013 photos 001
Justice Breyer’s Lunch Talk

I’ve just participated in a small conference on copyright and patent law, hosted by the American Law Institute and Georgetown University Law Center, a few steps from Capitol Hill in Washington, DC. Of the 40 people in the room, I was the only one who was not a lawyer or a legal scholar—I was invited to contribute perspectives from creativity research. I was honored to be in the room, because these were some of the most highly respected people working in intellectual property—scholars from Stanford and NYU; senior legal counsel from Google and Walt Disney; judges on the Federal Circuit Court; and our lunch speaker, Supreme Court Justice Stephen Breyer. He impressed the hell out of me…a great speaker, savvy in the political ways of Washington, and a brilliant mind. The smartest guy in the room–and in this room, that was saying a lot.

Although a lot of the legal terminology went over my head—“doctrine of equivalence” and “settled expectation”—it was really stimulating. After all, the research shows that one of the best ways to stimulate creativity is to learn something about a new field related to your own. I give this advice in my new book, Zig Zag (on pages 67 and 68):

Branch out: Always start with your core area of expertise—but don’t stop there. Branch out and study subjects in every area that is somehow related to your problem….Successful creators are curious by nature. They ask questions and listen closely to the answers, even when the information has no obvious relationship to what they’re working on at the moment.

This conference was perfect for me, because intellectual property lawyers think about creativity every day, but using a totally different language and perspective from my creativity research colleagues. Here are some of the key themes I took from the day:

  1. The panel I spoke on discussed how (and whether) patents and copyrights provide incentives to creators to create. The research shows, not very much. Creators almost never think about patents or copyrights; when they do, they mostly get annoyed and consider them to be a hassle. Lots of creativity takes place in areas which are not eligible for patents or copyrights—from top chefs inventing new recipes, to the time-consuming and effortful work of writing fan fiction.
  2. Do judges even need to pay attention to what these scholars think patents and copyrights should do? After all, isn’t the role of a judge simply to interpret the statutes as written by Congress? I was a bit surprised to discover that pretty much everyone in the room thinks this is naïve and simplistic. The statutes are thought to be broad and ambiguous, open to interpretation. And after ten or twenty years, things change so much—and so much case law develops—that the statute really isn’t that helpful any more.
  3. Justice Breyer was asked, “We have a bumper crop of IP cases before the Supreme Court; is there an increased interest in these issues?” Breyer’s response was that the legal community has been saying that the Federal Circuit Court (which handles all patent appeals for the entire U.S.) has become “too patent friendly,” and the Supreme Court is listening and essentially, checking to see if that’s true.
  4. A common theme was the tension between generality and specificity. Patent law is general—it applies to all technologies and scientific domains. One could imagine a more specific regime; for example, the Digital Millenium Copyright Act (DCMA) is a statute concerning intellectual property that is specific (to digital rights and copyrights) rather than general. My sense was that the consensus was in favor of general regime and against specific regimes. A second manifestation of this tension is with the courts; the Federal Circuit Court handles all patent appeals, which means those judges develop specialized knowledge about patents. Before the Federal Circuit was created, patent appeals were heard in the regional District Courts, by judges who heard appeals of every kind of decision—a more general role. Most scholars seem to think this is a good idea, although the Federal Circuit has been widely criticized, as Justice Breyer noted, for being too patent friendly.

The stated theme of the conference was “bringing together copyright and patent law in court,” and I’m not sure we got any good answers for how to do that. But I probably only think that because I’m not part of this legal community; the folks I met there told me that copyright experts and patent experts are like people from two different planets, who rarely come together. In the courts, the Federal Circuit handles patents and the District Courts handle copyrights. So I’m pretty sure the conference organizers would consider the event a success, simply by getting copyright people and patent people in the same room together.

ALI 2013 photos 002I stayed one extra day, and toured several museums. The high point was visiting the old Patent Office, just a few blocks from the conference, which had a special exhibit of historic patent models from the 19th century. The building also houses the National Portrait Gallery and the Smithsonian Museum of American Art. And–it’s a bit geeky–but I also loved the Postal History Museum, in the old post office building right next to Union Station. If you want to learn about facer-canceller machines, or about the handmade artwork in old cancellation stamps, this is the place for you!

Clickable Phone Numbers: Obvious or Not?

Today’s Wall Street Journal reports that Apple is suing Google, claiming that Android infringes on iOS (iPhone) patents. One of Apple’s patents is apparently for the feature of clicking on a phone number in a web page, to make the phone automatically dial that number. That patent should be invalidated immediately, for several reasons:

1. The Palm Treo 650 had clickable phone numbers in emails. When you implement the same idea in a web browser, does that really deserve a patent? No. It’s obvious, and patents have to be “nonobvious” according to patent law.

2. If you aren’t convinced that this is an obvious idea, take a look at this online web forum of Palm Treo users from 2005. Everyone is saying “This is so obvious! Why doesn’t Palm implement this?” And apparently, you could download an app that would make phone numbers clickable in most of your Treo apps.

I found the language of Apple’s patent online,* and I can’t believe Apple was granted a patent for such a broad claim that was obvious and was pre-existing in prior art. Read this, and then try to tell me our patent system is not broken:

Claim 1: A computer-based system for detecting structures in data and performing actions on detected structures, comprising: an input device for receiving data; an output device for presenting the data; a memory storing information including program routines including an analyzer server for detecting structures in the data, and for linking actions to the detected structures; a user interface enabling the selection of a detected structure and a linked action; and an action processor for performing the selected action linked to the selected structure; and a processing unit coupled to the input device, the output device, and the memory for controlling the execution of the program routines.

Claim 8: The system recited in claim 1, wherein the user interface highlights detected structures.

As I pointed out earlier this week, Palm Treo did it first. I admit I’m not an expert in this; perhaps Apple purchased Palm’s patent? Is there some legal basis for arguing that Palm’s clickable email phone numbers are somehow different from the above language?

In other news today (Friday August 31, 2012) a Japanese court ruled against Apple in its lawsuit against Samsung. This fight was over a completely different patent than the seven at issue before the California jury: Apple had a patent on a technique for synchronizing music and video data with servers.

I remain convinced that Apple will eventually lose, on the grounds that many of these patents are invalid due either to obviousness, or because the ideas already existed in devices that predated the iPhone.

*http://www.techspot.com/news/46757-htc-loses-to-apple-several-android-phones-banned-in-the-us.html

Apple Wins in Court; Innovation Loses

Last week a U.S. jury sided with Apple in its patent case against Samsung and awarded Apple $1.05 billion. Robin Feldman, an intellectual property law professor at the University of California Hastings Law School, said this just before the verdict:

“The trial is evidence of a patent system that is out of control. No matter what happens in this trial, I think people will need to step back and ask whether we’ve gone too far in the intellectual property system.”*

Readers of this blog know that I have been opposed to the current US patent regime; I argue that it’s too easy to get a patent and too easy to defend a patent. This blocks innovation because patent holders are allowed to prevent others from building on and improving their patents. That’s a problem because innovation is incremental; every new step forward always builds on a long chain of prior innovations. If any one link in the chain is allowed to block all future enhancements, then innovation stops.

I’ve had iPhones for about three years and I love them. But my first iPhone replaced my Palm Treo 650, and I loved my Treo, too. My Treo did just about everything the iPhone did, so I never really thought the iPhone was particularly innovative. If you never had a Treo, check out this list of iPhone/Treo features:

  • Check your email anytime? Palm Treo had that.
  • Surf the Internet with a touch-screen browser? Palm Treo had that.
  • Touch the screen to follow a link to another web page? Palm Treo had that.
  • An app store, where you could buy and download cool apps like games and productivity software? Palm Treo had that.
  • A music player for your MP3 files? Palm Treo had that.
  • Bluetooth wireless connectivity? Palm Treo had that.
  • Sync your contacts and calendar with your computer? Palm Treo had that.

See what I mean? Really, the only truly new thing in my first iPhone was the WiFi ability and the GPS feature. And the iPhone wasn’t the first phone to have WiFi, and it wasn’t the first portable GPS device either. I agree with this Google spokesperson, responding to the jury verdict:

“The mobile industry is moving fast and all players, including newcomers, are building upon ideas that have been around for decades.”*

Samsung wanted to show jurors evidence that the iPhone was inspired by older products, including those by Sony, but U.S. District Judge Lucy Koh refused to allow the evidence. (For a technical reason: Samsung failed to disclose these examples of prior art during the fact discovery period.* I wonder if the verdict might have been different if the jury had seen this evidence?)

So what were the six patents Samsung was judged to have infringed? It actually was fairly difficult to find this information on the Internet; most media outlets decided this was “too much information” for the typical American. (I found the interactive graphic with the following information on the Wall Street Journal web site here and a detailed summary of the six patents here.)

  1. Utility patent ‘163. Enlarging documents by double tapping the screen.
  2. Utility patent ‘381. When you scroll to the top or bottom of a web page, the display “bounces back”
  3. Utility patent ‘915. Screen can distinguish between single-touch and multi-touch gestures. You can pinch to zoom in, and do one-fingered scrolling.
  4. Design patent ‘087. The ornamental design of the back of the iPhone.
  5. Design patent ‘305. Rounded square icons on the home screen interface.
  6. Design patent ‘677. Ornamental design of the front of the iPhone, with edge-to-edge glass and a front speaker.

The jury threw out the seventh Apple patent: Apple had a patent for the iPad shape, a rectangular shape with rounded corners, and the jury decided that no company could patent a geometric shape. (A victory for common sense.)

Take a look at the detailed, side-by-side comparisons of the iPhone and the Samsung products judged to infringe, on all six patents, here. Yes, I have to agree, those Samsung phones look a lot like those iPhones. But come on, they look the same because they’re both black rectangles with rounded edges!

After I spent some time “under the hood” of the details, I’m left with a couple of reactions. First: Apple spent a lot of money to apply for all of those patents over the years. I think it’s scary when any company really thinks they should have the right to patent a rectangle with rounded corners. Or the right to patent the ability to scroll a screen using your finger. Remember my old Palm Treo? Yes, I scrolled it with a stylus. So changing it from a stylus to a finger gets you a patent?

Second: It’s scary that a jury voted against Samsung. I don’t blame the jury, they were simply following the court’s instructions and the law as it currently stands. The problem is with the law. So now every company is going to be filing patents for triangles, parallelograms, three finger touches, scrolling with two fingers moves slower than scrolling with one, you name it. Come to think of it, I’ll bet most of those ideas already are patented. No doubt some company already has a patent for a trapezoidal phone shape. Coming soon to a court near you, and you heard it here first!

What ever happened to the “nonobviousness” doctrine? Under patent law, an idea is supposed to be nonobvious before a patent can be valid.

Apple’s official statement says that “stealing isn’t right.” That is embarrassingly simplistic. I prefer Samsung’s official statement:

Today’s verdict should not be viewed as a win for Apple, but as a loss for the American consumer. It will lead to fewer choices, less innovation, and potentially higher prices. It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies.

There will be one or two more rounds in this fight: Samsung will appeal to the U.S. Court of Appeals for the Federal Circuit, and then possibly to the Supreme Court. Stay tuned.

1. http://www.huffingtonpost.com/2012/08/26/apple-jury-patent-trial-samsung_n_1831855.html?utm_hp_ref=technology

2. Jessica E. Vascellaro and Don Clark, “Apple victory shifts power balance.” WSJ, August 27, 2012, pp. B1, B4.

3. http://designpatentattorney.com/blog/ “Samsung main life-line would be to unearth and introduce close prior art designs.  However, here, due to an apparent failure to abide by discovery deadlines, the court is preventing Samsung from relying upon many of its best prior art references at the trial.  Thus, this case serves as a stark reminder of the drastic consequences that can arise when a party fails to meet discovery deadlines.”

Creativity and the Law

I just returned from a fascinating event at Notre Dame Law School, the Creativity and the Law Symposium. Organized by Professor Mark McKenna, the symposium consisted of 14 presentations, most of them by intellectual property (IP) lawyers who are looking to psychological science to learn how IP law can best foster creativity and innovation.

The first thing I noticed was that all of these legal scholars accepted an instrumental view of IP law: that the purpose of IP law (which includes patent, copyright, and trademark) is to foster maximum societal innovation, for the good of all. I didn’t hear a peep about a competing view that you might call the property view: that my ideas and creations are my personal property, and I have an inalienable right to own them, just like I own my house or my classic BMW motorcycle. That’s fine with me, because I also believe that IP law should be designed to foster the maximum creativity of all. My own studies of creativity demonstrate how each new creation is always a rather small advance on the large body of knowledge and expertise that has come before, so being overly possessive about your own ideas is always an error.

Two information conversations stick in my mind: One with Professor Greg Mandel, of Temple University, who told me that many legal scholars had begun to draw on psychological research to inform the law. This move across disciplinary lines is similar to an earlier foray into economics; economics scholarship (particularly microeconomics and behavioral economics) has been influencing the law for some time now. Greg’s paper introduced the day’s symposium, and he drew on the sort of psychological research that I review in my book Explaining Creativity.

A second was with Abraham Drassinower, of the University of Toronto. In our conversation, we reflected on this whole endeavor, asking the question: What are the real-world implications for the law, of psychological research? After all, throughout history, law has never been based on scientific research. It has always been based on normative claims about human relations, it always involves culturally specific conceptions of the individual and his or her relationship to the collective.

In my talk, I described the “Western cultural model of creativity” and ten associated beliefs that are widely assumed in the United States (but which are not supported by research). I drew on the group genius of the assembled legal scholars, and for each of the ten beliefs, I asked them to tell me how current IP law was, or was not, based on these assumptions.

I share the approach of my legal colleagues: Our goal should be to align IP law with the way that creativity and innovation actually work, as revealed by empirical study. I was delighted to participate in this stimulating event.