By
James DeGiulio —
A recent study published in The Columbia Science and Technology Law Review challenges the traditional
view that patents foster innovation, suggesting instead that patents may harm
creation of new technology, economic activity, and societal wealth ("Patents and the Regress of Useful Arts"). The study, conducted by Dr. Andrew W. Torrance (at right), Associate Professor at the University of Kansas School of Law and a Research
Associate at the Biodiversity Institute at the University of Kansas, and Dr.
Bill Tomlinson (below left), Assistant Professor in the Informatics Department of the Bren
School of Information and Computer Sciences at the University of California-Irvine, sought to address the lack of empirical evidence to support the
assumption that patents do actually encourage technological innovation. The results of the study challenge the
orthodox view that the prospect of patent protection for new inventions leads
to higher rates of technological innovation, as well as greater attendant
benefits to society, than would a commons system offering no patent protection.
To
test the hypothesis that a patent system promotes innovation, the study used a
computer program to simulate the behavior of inventors and competitors under
conditions approximating patent and non-patent systems. PatentSim, the computer
program used, is a multi-user interactive simulation of patent, patent/open
source, and commons systems. Inventions are created from a database of
potential innovations, represented by an assortment and pattern of a fictional
widget product. The program
attempts to represent the systematic, experimental nature of the process of
invention by creating a set of values in which certain innovations are very
valuable, but difficult to invent. PatentSim contains an interactive interface that allows users to invent,
patent, or open source innovations, and a network over which users may interact
with one another to license, assign, buy, infringe, and enforce patents. The
program measures individual and societal benefits by offering money incentives
for such activities as invention, licensing, and infringement.
First
year law students at University of Kansas School of Law competitively played
PatentSim against one another in games under three distinct systems: (1) a
system approximating a pure patent system ("Pure Patent"), (2) a
system allowing both patents and open source ("Patent/Open"), and (3)
a system approximating a pure commons system ("Pure Commons"). Before
the simulation began, all players were informed that they will be playing a
simulated business game, and that the goal is to make as much money as possible
before the game is over. They are told that the game will conclude at a time
randomly chosen between 25 and 35 minutes after they begin. Following the conclusion of the
simulations, data was generated that compared rates of innovation, productivity,
and social utility across these three systems.
Innovation
was defined as the mean number of unique inventions. Graph 1 (below) illustrates the relative amounts of
innovation generated in the Pure Patent, Patent/Open Source, and Pure Commons
systems. The data reveal that there is no significant difference in innovation
(p=0.538) between the Pure Patent and Patent/Open Source systems, a nearly
significant difference in innovation (p=0.128) between the Pure Patent and Pure
Commons systems, and a significant difference in innovation (p=0.046) between
the Patent/Open Source and Pure Commons systems.
Productivity
was defined as the mean number of total inventions created. Graph 2 (below)
illustrates the relative amounts of productivity generated in the Pure Patent,
Patent/Open Source, and Pure Commons Systems. The data reveal that there is no
significant difference in innovation (p=0.886) between the Pure Patent and
Patent/Open Source systems, a highly significant difference in productivity
(p=0.0000000004) between the Pure Patent and Pure Commons systems, and a highly
significant difference in productivity (p=0.000003) between the Patent/Open
Source and Pure Commons systems.
Social
Utility was defined as the mean amount of money with which each subject ended
each trial. Graph 3 (below) illustrates the relative amounts of social
utility generated in the Pure Patent, Patent/Open Source, and Pure Commons
systems. The data reveal that there is no significant difference in social
utility (p=0.454) between the Pure Patent and Patent/Open Source systems, a
highly significant difference in social utility (p=0.0002) between the Pure
Patent and Pure Commons systems, and a significant difference in social utility
(p=0.0006) between the Patent/Open Source and Pure Commons systems.
Data
generated from this simulation suggest that the current system combining
patent and open source protection for inventions generates significantly lower
rates of innovation (p<0.05), productivity (p<0.001), and societal
utility (p<0.002) than does a commons system. Further, the empirical data generated using PatentSim
suggests that commons systems can generate significantly greater amounts of
innovation, productivity, and social utility than currently predominating
patent systems that combine both patent and open source protection for
inventions.
Additional information regarding the study can be found in a press release issued by the University of California-Irvine.
James DeGiulio has a doctorate in molecular biology and genetics from Northwestern University and is a third-year law
student at the Northwestern University School of Law. Dr. DeGiulio
was a member of MBHB's 2009 class of summer associates, and he can be contacted at degiulio@mbhb.com.
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