Unproductive patents

Patents are a state-granted property rights, designed to promote innovation and the transfer of knowledge. They grant the holder a time-limited, exclusive right to make, use and sell the patented work, in exchange for the public disclosure of the invention. This, so the theory goes, allows creators to utilise and commercially exploit their invention, whilst disclosing its technical details allows for the effective public dissemination of knowledge. However, complaints that the patent system is broken and fails to deliver are common.

Patent Assertion Entities (or ‘Patent Trolls’) buy up patents simply to threaten accused infringers with (often dubious) lawsuits, and are estimated to cost American consumers alone $29bn annually. Another scourge are the 'patent thickets' made up of overlapping intellectual property rights which companies must 'hack' through in order to commercialize new technology. These have been found to impede competition and create barriers to entry, particularly in technological sectors.

Even thickets and trolls aside, using the patent system can carry high transaction costs and legal risks. Litan and Singer argue that this prevents many small and medium businesses from utilizing the system, with over 95% of current US patents unlicensed and failing to be put to productive use. This represents a huge amount of potentially useful 'dead' capital, which is effectively locked up until a patent's expiry.

There are plenty of ways we can tinker with the patent system to make it more robust and less expensive. However, they all assume that patents do actually foster innovation, and are societally beneficial tool.

A number argue that even on a theoretical level this is false; the control rights a patent grant actually hamper innovation instead of promoting it. Patents create an artificial monopoly, which results, as with other monopolies, in higher prices, the misallocation of resources, and welfare loss. Economists Boldrin and Levine advocate the abolition of patents entirely on grounds the that there is no empirical evidence that they increase innovation and productivity, and in fact have negative effects on innovation and growth.

A new paper by Laboratoire d'Economie Appliquee de Grenoble, authored by Brueggemann, Crosetto, Meub and Bizer backs this claim, by offering experimental evidence that patents harm follow-on innovation.

Test subjects were given a Scrabble-like word creation task. Players could either make three-letter words from tiles they had purchased, or extend existing words one letter at the time. Those who extended a word were rewarded with the full 'value' of that word, creating a higher payoff to sequential innovation. In ‘no-IP’ (Intellectual Property) game groups, words created were available to all at no cost. In the IP game groups, players could charge others a license fee for access to their words.

The results are striking:

We find intellectual property to have an adverse effect on welfare as innovations become less frequent and less sophisticated…Introducing intellectual property results in more basic innovations and subjects fail to exploit the most valuable sequential innovation paths. Subjects act more self-reliant and non-optimally in order to avoid paying license fees. Our results suggest that granting intellectual property rights hinders innovations, especially for sectors characterized by a strong sequentiality in innovation processes.

In fact, the presence of a license fee within the game reduced total welfare by 20-30%, as a result of less sophisticated innovation. Players in these games used shorter, less valuable words, and in order to avoid paying license fees would miss innovation opportunities which were seized upon in no-IP games.

The authors suggest that patents could be harmful in all highly sequential industries. These range from bioengineering to software, where the use of patents has been strongly criticized, through to pharmaceuticals, where the use of patents is much more widely accepted. If patents really do restrict follow-on innovation even remotely near as much as suggested, the implications could be huge.

Of course, the study is only experimental and far less complex than real life, but it’s a useful contribution to the claim that patents do more to hinder than to help.

Maybe we should like patents

For a long time I was very sceptical of the benefits of patents. For one thing, they seemed to interfere with other types of property—Apple's patents over certain shapes for phones mean Google cannot use its factories, materials, etc. in certain ways. For another, I coincidentally had come across work suggesting their benefits are overstated, including Against Intellectual Monopoly (appropriately available in full online) by Michele Boldrin and David K. Levine.

But three recent papers exploiting a novel source of data have made me reconsider, since they throw cold water on one of the popular alternatives to patents: innovation prizes. All three are by B. Zorina Khan, an economics Professor at Bowdoin College and fellow at Stanford University's august Hoover Institution.

The first looks at annual industrial fairs in 19th century Massachusetts and finds that (relative to patents awarded over the same period) prizes were mainly used for advertising purposes, were awarded unsystematically and unpredictably, and did not vary in line with how useful or popular an invention or innovation ended up being. What's more, prizewinners were typically from a more privileged class than patentees. This all implies that patents are more market driven and better at incentivising creative innovation, Khan says.

The second looks at similar data (American Institute of New York annual fairs) from a different angle. One argument against patents is that they limit what others can do on top of a given innovation, or how much they can be inspired by a particular breakthrough, because they might have to license the patent or risk infringing it. One argument in the other direction is that patents allow people to bring their information out into the open because others will not use it to jump ahead, so it encourages openness. What's more, all of their info surrounding the innovation is written down and easy to find.

Khan finds that the second effect predominates; patents encourage 'spillover' innovation more than prizes:

In keeping with the contract theory of patents, the procedure identifies high and statistically significant spatial autocorrelation in the sample of inventions that were patented, indicating the prevalence of geographical spillovers. By contrast, prize innovations were much less likely to be spatially dependent. The second part of the paper investigates whether unpatented innovations in a county were affected by patenting in contiguous or adjacent counties, and the analysis indicates that such spatial effects were large and significant. These results are consistent with the argument that patents enhance the diffusion of information for both patented and unpatented innovations, whereas prizes are less effective in generating external benefits from knowledge spillovers. I hypothesize that the difference partly owes to the design of patent institutions, which explicitly incorporate mechanisms for systematic recording, access, and dispersion of technical information.

Finally, her 2013 paper “Trolls and Other Patent Inventions: Economic History and the Patent Controversy in the Twenty-First Century” (the argument is given in less length in a Cato Unbound essay) argues that if you take a long historical view, current patent controversies around non-practising entities, patent thickets, litigation and so on are not new. She says they are part of a well-functioning and successful intellectual property system.

So maybe we should like patents. After all, we support regular property rights because the institution has been proven to lead to a wealthy, successful society, even if messed with substantially. If patents are the best tool we have for generating innovation—a key ingredient of continued social progress—then we should support them too.

Privateers and the sinister threat posed by 'patent trolls'

Many in Britain may not be familiar with the term ‘patent privateering’ – but that may all be about to change. British courts are apparently being targeted in a forum-shopping exercise by global monopolists, who are using this technique to reduce competition and innovation in the hi-tech sector. This new menace to the workings of efficient markets is rapidly gripping the global hi-tech sector and it threatens to stifle innovation, raise prices and constrain choice for consumers not just in Britain but across the globe. The threat has been dubbed ‘patent privateering’ and its impact on effective competition is already alarming.

Patent privateering refers to the practice whereby corporations enter into private agreements with patent assertion entities (PAEs) - effectively separate companies with no assets or manufacturing capabilities. The process works along these lines: Company X and Company Y have agreements to license a specified number of patents from each other in order to create a product. What Company Y does not know is that Company X has a private agreement with Company Z (a privateer) to hold certain patents that are essential to the production of the product Company Y is creating. Once the product is in the market, the privateer, Company Z, threatens to sue Company Y. Since it may cost Company Y anything up to $2.5 million to defend itself, most companies opt to settle. So Company X benefits from a large share of the proceeds collected by the privateer Company Z. Such behaviour cramps competition and damages the end consumer – big time.

This cynical form of economic rent-seeking is becoming more and more widespread. PAEs or ‘patent trolls’ as they are sometimes styled are now estimated to add a staggering annual burden of $29 billion on the back of American consumers alone[i].

Incumbents with a market share to defend are tempted to set up patent trolls – it’s often impossible to trace their real owner – to raise competitors’ product prices and shackle innovation and choice in the marketplace. By employing patent trolls the incumbents avoid counter suits which would risk their own asset base as well as attract unwelcome publicity and potential reputational damage.

Media reports have begun to shine some light on these questionable practices. One of the most prominent is MOSAID, a controversial patent troll which collects royalties on 2,000 patents transferred by Microsoft and Nokia while another troll, Unwired Planet, is collecting royalties on 2,185 patents assigned by Swedish telecoms giant Ericsson. Another PAE, owned by a group including Goldman Sachs and Boston Consulting Group collects royalties for patents originally filed by our own British Telecom, which stands to collect half the proceeds from the patent.

These developments risk turning patents into a tool of litigation rather than innovation. Abuse of the patents principle runs counter to the original intent of patents, which was a set of exclusive rights granted by a government of a sovereign state to spur innovation and provide entrepreneurs with a reasonable return for their innovative research collected on a fair, reasonable and non discriminatory (what lawyers term FRAND) basis.

In the computer software industry over 100,000 patents are filed each year. Many of these are for innovations which are not particularly novel and are likely to be independently invented by a host of IT engineers. In practice, it is often impossible for a software firm to know that it is not infringing on an existing patent. In the US, where wilful infringement triggers treble damages if proved in court, software developers have a powerful incentive not to conduct a patent search.

Competition watchdogs need to cast a careful eye on these worrying developments. Already in the US, the Federal Trade Commission (FTC) has begun to collect information on patent trolls’ corporate structures, their portfolio of patents and the way in which they acquire them and enforce them. Congress is also considering legislation[ii] aimed at outlawing deceptive patent demand letters and granting the FTC civil penalty authority to tackle this rapidly emerging threat to consumer welfare.

In Europe, regulators have yet to really tackle the problem posed by patent privateers. Yet, as Robert Harris, a law professor at the University of Berkeley, California, points out, “Given the harm to competition that patent entity sponsored privateering, there are important roles for anti-trust authorities: blocking potentially anticompetitive patent transfers and bringing enforcement actions against anticompetitive conduct by patent entity sponsored PAEs”[iii].

Due to the lack of regulation of this anti-competitive practice, the courts in England, it seems, will be the first in Europe to evaluate and rule on patent privateers. Cases are expected to begin in the High Court from the end of 2014. U.S. courts have already suffered from bruising judicial battles that have proved a perfect case-study of how rent-seeking through the courts can harm the effective functioning of a dynamic market.

The hope is that we do not have to learn the lesson the hard way, as the Americans have done. It’s about time our troop of regulators woke up to the threat posed by the growing ranks of rent-seeking patent trolls.

[i]                  See ‘As Congress and Enforcers Contemplate Patent Trolls, Don’t Forget about Privateering’, by David   Balto (a former policy director at the FTC), Huffington Post, 4 December 2013.

[ii]                 The House Subcommittee on Commerce, Manufacturing & Trade of the Committee on Energy & Commerce has been holding expert testimony hearings on a draft Bill with respect to deceptive patent demand letters (see FTC testimony, 22 May 2014).

[iii]                 PAEs & Privateers: Economic Harm to Competition & Innovation, Robert G Harris, Georgetown Law Annual Antitrust Symposium, Georgetown Law School, Washington DC, September 2013.