Few things infuriate me more than supposed experts who make statements along the lines of “patents are critical to innovation.” I have avoided stating my views widely in this forum because I didn’t want to get into a contest of one upmanship with my patent lawyer peers. However, in the last couple of weeks, several pieces of information have hit my radar screen that make this seem like the right time to go public with my views.
Let my position be very clear: we create a false dichotomy when saying “innovation is not possible without patents.” The issue is much more complex and nuanced than this: in a particular instance, patents may be critical to innovation, but they might also be only slightly important or–likely in the majority of situations–they might be wholly irrelevant to innovation. (I talk more about this in this recent interview in Innovation Management Magazine.) Unfortunately, where you stand also depends on where you sit, and sitting behind a desk writing or examining patents may color your belief that patents are the cure for America’s innovation ills. (The cynic would likely note that relying on a patent practitioner or the Commissioner of the US Patent Office for an assessment of whether we need more patents is akin to “putting the fox in charge of guarding the hen house, but I digress. . . .”)
Building equivalency between the number of patents issued is now generally accepted by business analysts to be an improper measure of innovation quality or likely success at the business level–although this is a fairly recent realization that was pushed by outside forces, not by those who generally were incentivized on the basis of patent quanitity, e.g., scientists, engineers and corporate and law firm patent practitioners. In other words, external forces increasingly dictate that corporate success, in the form of market value etc., be measured by output in the form of profits and the like, not by inputs in the form of number of patents filed and/or issued. A similar transformation has not made it into the public discourse about what our patent system means and how it can function more effectively, however. Continue reading