Intellectual Property: A Very Short Introduction (Very Short Introductions) by Siva Vaidhyanathan

Author:Siva Vaidhyanathan
Language: eng
Format: mobi
ISBN: 9780199706808
Publisher: Oxford University Press
Published: 2017-02-09T00:00:00+00:00

Patent thickets

One acutely pernicious form of the anti-commons problem is a “patent thicket”—overlapping patents that cover the same product or process. The best-documented thicket concerns semiconductors. Semiconductor producers potentially infringe on hundreds of different patents owned by companies that harvest only patents. These firms produce no innovation. They merely seek rents from others who hope to bring technologies to market, thus profiting mightily from the patent arms race. When information is incomplete, as within an industry that is inherently multidisciplinary and requires searches for patents in a variety of areas, the dangers of patent thickets become even more pronounced.

The classic historical case of a “patent thicket” inhibiting innovation rather than encouraging it is the early U.S. airplane industry. Americans often boast of the success that Wilbur and Orville Wright enjoyed building and flying a powered aircraft at Kitty Hawk, North Carolina, in 1903. Alas, their legacy did more to impede the development of an American aircraft industry than spark it. That is because they ruthlessly defended their suspect patent over the method they used to control the aircraft. It is also because the Wrights made very bad aircraft. Other companies controlled other technologies that were essential to safe and effective mechanized flight. So while the patent held by the Wrights might have been the thorniest branch of the thicket, it was not the only one. The Wrights were so aggressive and successful at stopping other entrants into aviation that U.S. military officials feared the patent conflicts would prevent the United States from developing a strong military aircraft industry. By the time the United States entered World War I in 1917, U.S. Assistant Navy Secretary Franklin D. Roosevelt and others had pressured the Wrights to join a patent pool so that all the American aviation companies could use the patents of each of the companies without fear. The state-created patent pool succeeded. And between World War I and World War II the United States was able to foster a creative and successful commercial and military aircraft industry.

It’s not a hard case to make: For complex products like smartphones, tablets, high-definition “smart” televisions, robots, biotechnologies, airplanes, and automobiles—especially electric automobiles—patent thickets are a big drag on competition and innovation. Perhaps the state should step in to make it harder to get a patent. Perhaps some patents in some industries should be weaker and last far less than twenty years. Perhaps the state should use antitrust or competition policy to break up patent thickets when they are abusive and retard innovation. Perhaps we should scrap the patent system for most if not all industries in most if not all countries. Perhaps not.

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