The Innovation Battle - Canadian musings on patents

"Should patents be strengthened, weakened or abolished altogether?" is the bold question posited by the Centre for International Governance Innovation (CIGI), the Blackberry-founded research centre in Waterloo, Canada.  CIGI has published a policy brief on the case for patents.  It's a handy guide to the economic arguments for patents, but likely to irk members of the IP community audaciously recommends creating clearer patent systems.

What? Clearer patents? Ones that non-legal experts can easily understood? Preposterous!  

The brief suggests that, as is the neoclassical (think 'mainstream') economic approach to IP, the case for patents lies in incentivising innovation.  The argument is:

1. the lack of incentives for innovation is a market failure (inefficiency)

2. the patent system provide incentivises innovation

3. the benefits of patents outweigh the costs

On this basis (the incentive-to-innovate, a.k.a. social contract theory), patents solve the market failure.   

The assumption that more innovation is desirable underlies these arguments. At the risk of being excommunicated by the Econohood, your Katonomist is no longer convinced of the sacred value of innovation. The constant beating of the innovation drum in patent discussions is tired.  Both the obsession with innovation, and the definition of innovation, merit further examination.   Innovation for innovation's sake aims for economic growth and development, which largely means GDP.  GDP is a flawed measurement and ignores societal happiness and envrionmental resources, amongst others. Biggger, better, faster, more at all costs? Our narrow, science-based definition of innovation neglects the knowledge economy, and the contributions of women and indigenous peoples. For example, the UK government's innovation strategy is a "science and innovation" strategy, and barely separates the two. These are not deep thoughts I had while doing a downward cat, but shared by others, here and here. Pro-patent, and indeed any pro-IP, arguments resting on innovation arguments deserve scrutiny. 

Despite the limitations of a pro-innovation approach, innovation creates a useful analytical framework and highlights shortcomings of the patent system.  As the CIGI brief notes, strategic use of patents can stifle cumulative innovation, and evidence patents promote innovation is limited. (The latter a point also made by Jeremy Phillips.)  As discussed in the post on the WIPR 2015, we know very little about how innovation works.  Blithely assuming the patent system promotes innovation is superficial, and leads to shortsighted approaches where more patents are equated with more innovation.   

Returning to classic economic arguments, the CIGI brief makes a number of recommendations (paraphrased):

1. Patents should be easily searchable 

2. Patents should be more easily understood by non-legal experts. 

3. Patents should be narrower and clearly demarcated

4. The requirements for obtaining a patent should be more restrictive

5. And here's the interesting one - "concomitant with the reduction in the length of the product cycle, the length of patents should also be reduced."

I love the idea of a patent length that adjusts to market relevance as it would tailor the legal monopoly of IP to its socioeconomic contribution.  I also love the idea of unicorns, but don't expect see one soon.  While criticism of our existing, one-size-fits-all system is prevalent (discussed by Stefano Barrazza at the JIPLIP 10th anniversary event), such as system can be efficient.  Tailoring patent length to fit market relevance would reward innovators in proportion to their contribution, but the costs would be prohibitive.  Can you imagine arguing over patent length decisions with patent offices? One-size-fits-all suddenly looks more palatable. 

Your Katonomist is not particularly swayed by the arguments in the brief as she finds them reductive (both of the patent system and of the economic analysis), but there is a reason such publications are called "briefs." However, if rapacious readers would like to use them as ammunition to have a go at economists, by all means feel free. 

Waterloo here, here and here.