WSJ on the State of the Intellectual Property Debate

WSJ's L. Gordon Crovitz has a fascinating column on intellectual property and patents, and the Supreme Courts recent decision to reconsider what can be patented. As Corvitz details the current state of views on IP, it is clear the IP community has not caught up with my view on IP, whereby patents and copyrights should be rewarded to "independent" discoverers and creators as opposed to just "first" discoverers or creators.

Crovitz wrires:

As Judge Richard Posner has written, patents for ideas create the risk of "enormous monopoly power (imagine if the first person to think up the auction had been able to patent it)."

In my view of copyright and patent protection where it is not the first person but any independent creator, with the burden of proof on previous creators that a new creator did not create independently, Judge Posner's concern about auctions would not be a problem, since it is very possible that more than one person could think up the concept of an auction, and very difficult, if not impossible, to prove that a person did not independently think up the concept of the auction.

On the other hand, it would be absurd, for example, to think that anyone independent of Ernest Hemingway wrote The Old Man and The Sea.

Crovitz also reports the concerns of IBM attorney David Kappos:

The makers of almost every new product have to jump through hoops to make sure they haven't violated a patent, which is one reason that patent king IBM is willing to toss in its crown. "In the Industrial Age, innovation primarily was the result of work by individuals or small groups within an enterprise," explains IBM lawyer David Kappos. "The nature of innovation has changed. Today, we benefit from inventions made possible through highly collaborative and interconnected technologies. Many of the products that consumers demand are complex and include contributions from multiple innovators that incorporate hundreds if not thousands of patented inventions."

This too would be a readily solvable problem in a world of "independent creator" versus "first creator".

If a research person used already created work, then obviously he would need permission to do so, if he came up with the thought independently, then no patent or copyright violation would occur.