by Mark Oppenheim
Technology continues to change our lives, and a surprising portion of this tech originates through contributions by individuals, collaborations and research efforts that receive little recognition. Additionally, nonprofit and publicly funded research drives innovation on diverse projects, including: research on the human genome and various medical processes, drugs and products; development of materials with special properties ranging from nano-materials to silica and plastics of various types; algorithms that search data and predict human behavior; and technologies that extract elements and energy from the ground. Such research, readily available and openly shared, is tremendously advantageous to society.
What happens next is interesting… and by turns it can be frustrating, entertaining and sad.
As a natural outgrowth of our economic system, there is a steady process underway that transforms openly available research and intellectual property into permutations that are patented, made secret, hidden from view, monetized, ‘owned’ and then defended from reproduction by others. Major companies with the wherewithal to do so, develop suites of similar patents that are fundamentally based in different combinations of free, derived and invented components, and then engage in complicated legal maneuvering to stop others from selling such products and services. Not all patents on tech share the attributes described above, but enough do to divert huge amounts of energy away from innovation and toward costly legal maneuvers.
With big money at stake, the various legal interactions between companies can make for interesting theater. The real question for our economy and society, however, is: does investing resources to develop legal and other complex barriers to competition advance or stifle innovation? Are we better off protecting or sharing “intellectual property” that in reality is often derived in part or wholly from the work of others?
We certainly don’t have easy answers, but interesting cases abound that affect us all in very personal ways. The on-going Apple and Samsung court battle is a tragi-comedic performance between legal teams over ideas that clearly no one at either company really invented. Place a piece of paper on a table, put your finger on it and drag it across the table and you’re fine; do it on a smartphone or tablet and you may have a patent infringement lawsuit on your hands.
More serious and pressing is the case before the US Supreme Court on the BRCA1 and BRCA2 gene mutation that causes higher susceptibility in women to cancer of the breast and ovaries. Myriad Genetics has taken patents out on these human genes and wants to control accessibility to the test, set their price and sell all tests for those genes.
The arguments advanced by the companies in the Apple and Samsung case, the Myriad case… indeed in most of these cases… are similar: we need patents to protect innovation. The argument is that money and the profit motive drives innovation, and innovation will dry up if such patents are not awarded and strictly enforced. Innovation, this side claims, will be enhanced in the long term if development of substantially similar products and services is prohibited, and if capital is concentrated in the hands of those that claim to originate inventions. It’s the ‘high prices and high profit drive innovation’ argument.
We’re not so sure that is right in today’s world.
Doubtless some kinds of innovation would suffer if fewer patents were rewarded or if defense of patents was made more difficult, but there would also doubtless be a boost to other kinds of innovation. So much new research and innovation is generated every day by people just playing around with knowledge, by scientists simply exploring possibilities, by commercial organizations trying to make a buck in some new way by getting a jump on the competition through being faster, better and cheaper.
Interestingly, many of these fights might be decided not by the courts or by legal teams working for businesses or nonprofit organizations. In some cases, the pace of innovation simply outstrips the ability of the courts to regulate it; in other cases, international jurisdictions with different laws offer ways to circumvent a whole range of legal restrictions imposed by particular markets. And consumer annoyance with the restrictive behavior of companies can result in a market backlash that itself can alter the behavior of corporations.
Inventor Benjamin Franklin developed many new and innovative products – bifocals, the lightning rod, the Franklin Stove and the flexible urinary catheter among them – that were freely shared with others. Sharing never seemed to stifle his innovative tendencies. Of course he wasn’t an incorporated entity with shareholders to satisfy.
Then again, maybe he had a particular idea about the responsibilities that innovators and their businesses have to the society fostering their success.
Maybe we can all learn something from old Ben.
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Mark Oppenheim is an unrepentant nonprofit wonk who runs nonprofit search and media organizations.
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