As a fun way to kick off 2009 for Broken Symmetry readers, I am welcoming author, patent lawyer, and professor Michael A. Gollin to guest blog on Broken Symmetry. Michael has had a distinguished career, which includes almost ten years of teaching Strategic Management of Intellectual Property at Georgetown. Recently, he authored Driving Innovation: Intellectual Property Strategies for a Dynamic World, which was released by Cambridge University Press in February 2008. To give readers a sense of the potential importance of this book to policymakers, the introduction was provided by former Senator Birch Bayh of Bayh-Dole Act fame. (If only Senator Bayh were still in office!)
Beyond the pleasure of his company, I wanted to invite Michael to guest blog because 2009 marks a pivotal moment in the history of intellectual property. Patent reform efforts that can only be called misguided were narrowly defeated in 2008. Many in Congress and in the Obama administration are aware that there are problems with the current patent system, but the proposals for change are all over the map. If anything, the guiding principle behind most proposals seems to be simple self-interest. What is needed badly at this moment is a comprehensive economic theory of innovation, and of how the patent system can work to promote innovation. Mr. Gollin's book should be required reading for anybody involved with patent reform.
The most important reason why Mr. Gollin's book succeeds at explaining how and why the patent system can be an effective means for promoting the progress of science and engineering is dynamics. Policymakers have understood how economic theory is important to both patent and copyright law for a long time. But many of the most prominent theorists of law and economics have overlooked how static models of equilibrium (all related in one way or another to the Arrow-Debreu model) fail to accomodate change over time. Whereas such a failure might have been tolerated in older industries and prior to globalization, it cannot in any industry in which innovation drives growth. More importantly to present purposes, it cannot adequately explain how and why a patent system can benefit both inventors and society at large.
But rather than summarizing the numerous principles of dynamic economic theory that are explained and applied to intellectual property in his book (read the book!), I want to take this opportunity to engage him in a discussion of patent reform. What subsantive or procedural changes would be most beneficial (or disadvantageous) to IP and antitrust law? How does a dynamic theory of IP and competition inform our policy analysis in ways that carry us beyond the standard arguments?
Here are a few areas that I can identify:
- Complete overhaul of patent disclosure requirements: The 19th Century specifications and drawings now filed should be supplanted by full multimedia so that inventors can explain their work in their own words to others in their field using full-color video and graphics. Let the lawyers worry about claiming.
- Clearinghouse for Ownership and Licensing Information: Any member of the public should be able to determine quickly and easily (for example, through an Internet search) the ownership and market price of a patented technology. The reason there is not a liquid market for IP rights is because valuations are difficult when price information stays private.
- Complete overhaul of antitrust rules as applied in cases involving IP: Recent FTC actions suggest a grave misunderstanding of the pro-competitive role of patents. Patents raise barriers to entry in the markets for patented products and processes, but patents also lower barriers to entry in the markets for R&D. Because these two competitions take place at different times -- often decades apart -- the net pro-competitive effect of patenting is not grasped by some antitrust decisionmakers.
Michael, am I wrong in thinking that the dynamic theory presented in your book might show favor on these kinds of proposals? Are there others that you would favor more?