Patently mad?

Shades of 1999, patent nattering is everywhere again. The two main pieces that have people talking are David Wessel’s from the WSJ, and Jonathan Krim’s in the Washington Post. Both point to an October FTC report that made blunt recommendations for changes in the U.S. patenting system, like more examiners, more ex post reviews, and so on.

Patent critics don’t buy any of this, arguing, as one fellow does in the WashPost piece, that 20-year protection for software patents is ludicrous given the pace of chance. That is a superficially appealing idea, but it is also largely self-refuting. If a 20-year-old patent still matters, then clearly the pace of technical change in software isn’t all that high. And if it doesn’t matter, then who cares what the patent length is — you’ve already conceded that it is irrelevant.

I think that what such people are really trying to say is that some patent are issued and interpreted over-broadly, and that’s fair. But it’s also not the point he was making at face value, which is that innovation trumps patents. It is a problem, in other words — just not the one critics claims to want solved.

More interesting is a comment on the issue from economist Brad DeLong. He highlights David Wessel’s column, especially the ongoing tussle between Microsoft and Eolas, the holder of an embedded applet patent. And then he goes on to decry the patenting practices of his own employers, the University of California:

“As a University of California professor, I am personally upset that the Regents, the President, and the lawyers of the University of California have forgotten what the purpose of a public university. Even if the Eolas patent had not been granted upon claims of the lack of prior art that appear to be false, the University of California has no business trying to restrict the spread of knowledge and the useful arts”

Universities are becoming increasingly split on this issue, or at least their faculty are. Folks like DeLong believe that public universities have an obligation to put things they create back into the public domain. Orthodox conservatives have no problem with letting people who create things own the rights, even if someone else (at least indirectly) paid for it. Pragmatists point out that a DeLong-ian view ignores the reality of university finances: U.S. universities received almost one billion dollars in licensing income in 2002 — a very large number, and one that funds an awful lot of activities and services.


  1. Brad DeLong says:

    But I believe in first-order conditions…