Aviation, the high-tech industry of its day, was similarly affected, the fed economists argue: "A good case in point is the Wright brothers, who made a modest improvement in existing flight technology that they kept secret until they could lock it down on patents, then used their patents both to monopolize the U.S. market and to prevent further innovation for nearly 20 years," they wrote. The same was true of Guglielmo Marconi, whose patents slowed the progress of radio technology for years.
Eliminating patents might be less harmful than you'd think. When industries are at their most dynamic, it is innovation -- not patent protection -- that makes the difference. Patents historically have come to the fore when industries begin to slow and become concentrated in fewer and fewer hands.
"The initial eruption of innovations leading to the creation of a new industry -- from chemicals to cars, from radio and television to personal computers and investment banking -- is seldom, if ever, born out of patent protection and is instead the fruit competitive environment," say Boldrin and Levine.
How to fix the patent system
As I said, Boldrin and Levine are quite serious, but their paper never really presents a concrete alternative. And they concede that the chances of actually abolishing the patent system are slim.
They write, "Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent-seeking, to foster innovation." That's altogether vague, and they quickly pivot to a list of eight possible reforms that would "reduce the harm done by the patent system." They include:
- "Stop the rising tide that, since the early 1980s, has extended the set of what can be patented and has shifted the legal and judicial balance substantially in favor of patent holders," a reform that would stop companies from patenting obvious features like those rounded corners
- Reduce the time that patents may remain in effect
- Tailor patent regulations to suit the needs of different sectors of the economy, instead of the current one-size-fits-all approach
For his part, Posner has one proposal that could make a huge difference. Indeed, he already put it into practice in the dispute between Apple and Motorola Mobility. In that case he ruled that companies can no longer come up with stratospheric claims of damages without calculating precisely how much the infringing component is driving demand for the product. As a New York Times columnist noted, when it comes to a rounded corner, "that's probably not very much."
I doubt that patents will ever be abolished, but by putting the issue on the table for rational discussion, Boldrin and Levine has done a service for everyone who cares about innovation in technology.
This article, "Save Silicon Valley -- abolish patents now," was originally published by InfoWorld.com. Read more of Bill Snyder's Tech's Bottom Line blog and follow the latest technology business developments at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.