By
James DeGiulio —

Earlier
this month, we reported on a study published last year in the The Columbia Science and Technology Law
Review, which suggested a 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 ("Patents and the Regress of Useful Arts").  The authors of
this study, 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, have now tested their PatentSim
software with individuals having patent "expertise," leading to some
differing results.  Their newest
study, published in the Southern
Illinois University Law Journal, ("Patent Expertise and the Regress of Useful Arts") shows that
there is no statistically significant difference in levels of innovation
generated by expert users across the pure patent, patent/open source, and
commons systems.

The
study utilized a computer program, PatentSim, to simulate the behavior of
inventors and competitors under conditions approximating patent and non-patent
systems.  A more detailed description of the PatentSim software can be found in
our previous report.

In
this iteration of the study, the PatentSim subjects were second and third-year
law students at the University of Kansas School of Law who had formally studied
patent law and open innovation (including open source).  These subjects
represented "expert" users of patent and open innovation systems.  This is in contrast to the original published study, which tested first-year
law students with no knowledge of patent protection, open innovation, or any
other intellectual property concepts.  Though the productivity and social utility levels (as defined by the
authors) were consistent with the first study with uneducated subjects, the
rates of innovation were noticeably different with expert users.

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 reveals
that there is no significant difference in innovation (p=0.441) between the
Pure Patent and Patent/Open Source systems, no significant difference in
innovation (p=0.197) between the Pure Patent and Pure Commons systems, and no
significant difference in innovation (p=0.802) 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 reveals that there is a
significant difference in innovation (p=0.017) between the Pure Patent and
Patent/Open Source systems, a highly significant difference in productivity
(p=0.0006) between the Pure Patent and Pure Commons systems, and a highly
significant difference in productivity (p=0.0032) 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 reveals
that there is a significant difference in social utility (p=0.020) between the
Pure Patent and Patent/Open Source systems, a highly significant difference in
innovation (p=0.0000051) between the Pure Patent and Pure Commons systems, and
a significant difference in innovation (p=0.0021) between the Patent/Open
Source and Pure Commons systems.

In
contrast to the authors' original highly-publicized study, where the rates of innovation
for the commons system were considerably higher than the patent and patent/open
source systems, the current study with educated subjects revealed no
statistical difference in innovation rates.  This suggests, perhaps obviously,
that some knowledge of intellectual property is required to effectively capture
the innovation incentives that patent protection provides.  If the results of
the simulation are to be believed, the current patent system encourages
innovation just as much as other non-patent systems, provided subjects are
aware of patents and how they function.

Interestingly,
and not without some irony, the authors of the study have chosen patent
protection for their PatentSim game rather than open sourcing.  As of the date
of this post, their patent application (U.S. Application No. 12/189,770; U.S. Patent Application Publication No. 2009/0043552) is still pending and has yet
to be examined.  The single
independent claim reads as follows:

1.  A system for simulating or operating
an intellectual property environment, said system comprising:
    an
administrator module;
    a
rules module; and
    a
user interface;
    wherein
said administrator module sets rules for said rules module either before and/or
during the operation of the environment;
    wherein
a user interfaces with said system through said user interface;
    wherein
said user puts together an invention object, using two or more invention elements
from an invention repository or some other source;
    wherein
said user has an option to manufacture said invention object in said intellectual
property environment; and
    wherein
said user has an option to apply for a patent or other protection for said invention
object in said intellectual property environment.

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.