The crisis of the patenting system in the digital age
Prior to the advent of the patent in 1421, humankind interacted with production secrets and other innovations using methods that were available at that time and were simple in nature. The secrets of production were kept secret by the businessmen of that time. The transfer of knowledge occurred from generation to generation, thus guaranteeing a monopoly position and distinguishing their owners from the competition. The institution of trade secrets is a direct descendant of such a method of protection. There were also more radical ways of preserving the secrets of production, which have become obsolete in the process of evolution. So, you rarely find masters blinded or imprisoned for life in a dungeon, as was the case with the builders of the Moscow Kremlin, or Venetian glassmakers.
In many cases, the intellectual component was almost inextricably linked with its carrier. No matter how hard the blacksmiths from Europe tried to repeat the properties of Damascus steel, they did not succeed. Often the secrets of mastery died with their carriers.
But not all developments can be kept secret. If the product or method of its manufacture can be easily disclosed by the method of "disassemble and see" or in an intelligent "reverse engineering". Naturally, their protection with the help of confidentiality cannot serve as a sufficient incentive for further innovations and improvements.
Technological progress has put before the society a request for a system that, on the one hand, allowed and stimulated the open occupation of innovative activities, and on the other hand, guaranteed compensation to the inventors for their efforts.
The first laws containing a similar approach to the patent as a document certifying the exclusive right to use the invention were the English Statute on Monopolies of 1623. and the Convention of the Revolutionary France of January 7, 1791. It is symbolic that the US Patent Act of 1790 was adopted just one year after ratification of the US Constitution and the organization of the new government. The first patents were signed by the founding fathers of George Washington and Thomas Jefferson.
The current patent system is the quintessence of its more than two centuries of development. But at the same time, it is still impossible to say that the system has developed ideal algorithms for the development of innovations. The system becomes global, but at the same time stagnant. It lacks flexibility, which is particularly relevant in the protection of innovations in the field of information technology.
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The patent system has built around a separate reality. In which, patents are not bought up for the production of new products, but in order to get money from those involved in their production. As a result, it is almost impossible to offer a new technology or software without violating intellectual rights. In order to protect themselves from such risks, companies are forced to acquire the rights to inventions that they do not need, the so-called “defensive patents”, and to spend intellectual resources and developers time to patent solutions that are not truly new.
Microsoft collects $ 5 from each HTC smartphone sold. HTC, earns on LG and Samsung. And when Samsung buys the patents of InterDigital wireless technology developer, Microsoft will have to pay the money. Thus, in fact, patents perform an entirely different function, which is referred to in the classical understanding of a patent in scientific papers on this topic.
As Apple CEO Tim Cook recently told about patent wars: "They are a pain in the ass."
Obtaining a patent for an invention helps to avoid competition in the market, giving the owner a unique advantage over competitors - the monopoly right to use the product and prohibit third parties to use it. It turns out that, on the one hand, states create anti-monopoly mechanisms that would increase competition in the market, which ultimately would increase trade, lower prices and have a positive effect on consumer welfare.
On the other hand, states encourage the very monopoly by granting patents. After all, it is known that a monopolist company produces less product than firms operating in a competitive environment, sells its product at a higher price than the one that would have formed in a competitive environment, the monopoly product is produced with lower efficiency and at a higher cost than product produced by competitive industry firms.
In addition, the benefits of the patenting system are different in different countries. Countries that export technology benefit from good patenting systems around the world, since the revenues generated by their monopoly ownership, as well as the revenues derived from the issuance of licenses, cover the costs of patenting. On the other hand, technologically backward countries constantly pay an ever higher price for proprietary and licensed products and rarely, even more likely, never receive income from patenting. Every year, all reducing their chances of starting to generate technological innovations.
Also, the erroneous opinion is that the patent is a guaranteed way to compensate for the investment in the development of funds. So with the parallel development of technology, the opportunity to return the invested funds and make money will be obtained only from the one who patented earlier.
The reasoning described above suggests that the Soviet patent legislation was in its essence closest to solving the tasks set before the patent system. 1919, V.I. Lenin signed the "Provision of the CPC on inventions." The patent was called "Copyright certificate". The inventor was deprived of the ownership of the invention, which was declared the property of the state. The author was granted the right to remuneration in the case of the introduction of the invention, creating savings of 2% of the annual economic effect. Thus, the patent immediately passed into public ownership and, at the same time, incentives for invention were created without the effect of monopolism.
Such an approach would satisfy the request of classical invention, in which the inventor is not an entrepreneur. The interest of which lies solely in the field of innovation, and not in the desire to obtain excess material goods.
How to be in situations in which not only intellectual potential, but also a certain financial base is necessary for starting development. If there is no guarantee of a monopoly in the form of a patent, it would seem very difficult to find investments. There is already a technological solution to this issue. Fortunately, no one patented it as a business method.
Crowdfunding is the collective collaboration of people who voluntarily pool their money or other resources together, usually via the Internet, to support the efforts of other people or organizations.
Crowdsourcing is the transfer of certain production functions to an indefinite circle of people, the solution of socially significant tasks by volunteers, often coordinating their activities with the help of information technology.
Kickstarter is a site for raising funds for the implementation of creative, scientific and industrial projects under the crowdfunding scheme. If you look at the top 20 Kickstarter projects, then all skepticism about the method of fundraising will disappear. Tens of millions of dollars collected by the global Internet community without claiming exclusive rights and monopoly, they say that the patent system is not the only system that can stimulate the development of innovation. For comparison, the patenting system has developed + - 200 years, Kickstarter - 4 years.
In fairness it should be noted that the nature of the patent system is not bad. Poorly there is the possibility of abuse of this system, the possibility of monopolizing not even solving some problem, but its very formulation, thus creating a monopoly on the whole problem, on any solution, no matter how original it may be (this is typical of software patents) and the impossibility of determining the adequacy of remuneration for the creation of a particular innovation.
In many cases, the intellectual component was almost inextricably linked with its carrier. No matter how hard the blacksmiths from Europe tried to repeat the properties of Damascus steel, they did not succeed. Often the secrets of mastery died with their carriers.
But not all developments can be kept secret. If the product or method of its manufacture can be easily disclosed by the method of "disassemble and see" or in an intelligent "reverse engineering". Naturally, their protection with the help of confidentiality cannot serve as a sufficient incentive for further innovations and improvements.
Technological progress has put before the society a request for a system that, on the one hand, allowed and stimulated the open occupation of innovative activities, and on the other hand, guaranteed compensation to the inventors for their efforts.
The first laws containing a similar approach to the patent as a document certifying the exclusive right to use the invention were the English Statute on Monopolies of 1623. and the Convention of the Revolutionary France of January 7, 1791. It is symbolic that the US Patent Act of 1790 was adopted just one year after ratification of the US Constitution and the organization of the new government. The first patents were signed by the founding fathers of George Washington and Thomas Jefferson.
The current patent system is the quintessence of its more than two centuries of development. But at the same time, it is still impossible to say that the system has developed ideal algorithms for the development of innovations. The system becomes global, but at the same time stagnant. It lacks flexibility, which is particularly relevant in the protection of innovations in the field of information technology.
')
The patent system has built around a separate reality. In which, patents are not bought up for the production of new products, but in order to get money from those involved in their production. As a result, it is almost impossible to offer a new technology or software without violating intellectual rights. In order to protect themselves from such risks, companies are forced to acquire the rights to inventions that they do not need, the so-called “defensive patents”, and to spend intellectual resources and developers time to patent solutions that are not truly new.
Microsoft collects $ 5 from each HTC smartphone sold. HTC, earns on LG and Samsung. And when Samsung buys the patents of InterDigital wireless technology developer, Microsoft will have to pay the money. Thus, in fact, patents perform an entirely different function, which is referred to in the classical understanding of a patent in scientific papers on this topic.
As Apple CEO Tim Cook recently told about patent wars: "They are a pain in the ass."
Obtaining a patent for an invention helps to avoid competition in the market, giving the owner a unique advantage over competitors - the monopoly right to use the product and prohibit third parties to use it. It turns out that, on the one hand, states create anti-monopoly mechanisms that would increase competition in the market, which ultimately would increase trade, lower prices and have a positive effect on consumer welfare.
On the other hand, states encourage the very monopoly by granting patents. After all, it is known that a monopolist company produces less product than firms operating in a competitive environment, sells its product at a higher price than the one that would have formed in a competitive environment, the monopoly product is produced with lower efficiency and at a higher cost than product produced by competitive industry firms.
In addition, the benefits of the patenting system are different in different countries. Countries that export technology benefit from good patenting systems around the world, since the revenues generated by their monopoly ownership, as well as the revenues derived from the issuance of licenses, cover the costs of patenting. On the other hand, technologically backward countries constantly pay an ever higher price for proprietary and licensed products and rarely, even more likely, never receive income from patenting. Every year, all reducing their chances of starting to generate technological innovations.
Also, the erroneous opinion is that the patent is a guaranteed way to compensate for the investment in the development of funds. So with the parallel development of technology, the opportunity to return the invested funds and make money will be obtained only from the one who patented earlier.
The reasoning described above suggests that the Soviet patent legislation was in its essence closest to solving the tasks set before the patent system. 1919, V.I. Lenin signed the "Provision of the CPC on inventions." The patent was called "Copyright certificate". The inventor was deprived of the ownership of the invention, which was declared the property of the state. The author was granted the right to remuneration in the case of the introduction of the invention, creating savings of 2% of the annual economic effect. Thus, the patent immediately passed into public ownership and, at the same time, incentives for invention were created without the effect of monopolism.
Such an approach would satisfy the request of classical invention, in which the inventor is not an entrepreneur. The interest of which lies solely in the field of innovation, and not in the desire to obtain excess material goods.
How to be in situations in which not only intellectual potential, but also a certain financial base is necessary for starting development. If there is no guarantee of a monopoly in the form of a patent, it would seem very difficult to find investments. There is already a technological solution to this issue. Fortunately, no one patented it as a business method.
Crowdfunding is the collective collaboration of people who voluntarily pool their money or other resources together, usually via the Internet, to support the efforts of other people or organizations.
Crowdsourcing is the transfer of certain production functions to an indefinite circle of people, the solution of socially significant tasks by volunteers, often coordinating their activities with the help of information technology.
Kickstarter is a site for raising funds for the implementation of creative, scientific and industrial projects under the crowdfunding scheme. If you look at the top 20 Kickstarter projects, then all skepticism about the method of fundraising will disappear. Tens of millions of dollars collected by the global Internet community without claiming exclusive rights and monopoly, they say that the patent system is not the only system that can stimulate the development of innovation. For comparison, the patenting system has developed + - 200 years, Kickstarter - 4 years.
In fairness it should be noted that the nature of the patent system is not bad. Poorly there is the possibility of abuse of this system, the possibility of monopolizing not even solving some problem, but its very formulation, thus creating a monopoly on the whole problem, on any solution, no matter how original it may be (this is typical of software patents) and the impossibility of determining the adequacy of remuneration for the creation of a particular innovation.
Source: https://habr.com/ru/post/288398/
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