By Kenneth Cukier: Another look at patents and technology

Yesterday Kenneth Cukier, technology correspondent for the Economist, visited us at the Berkman Center to discuss his "Market of Ideas," a piece in which he argues that patents are good for both the industry and consumers (published Oct. 20 in The Economist).  Here is Cukier's take on the discussion:

Since the publication of the survey "A market for ideas" on patents and technology appeared three weeks ago in The Economist, I've received a lot of criticism. Mainly, I think this was because I challenged a number of orthodoxies from an unconventional angle: on one hand, I pointed out many failings in the patents system, yet came to the conclusion that we needed to resolve them so that we can have more intellectual property, not less -- and turn what today is a "system" into a "market." This, I argued, would lead to gains for society, even if it meant winners and losers in industry.

But was I right? Today was the first time I faced the feedback directly -- and was expected to have some answers, too -- rather than simply read letters to the editor. That the room was filled with both lawyers and techies, as befits the Berkman Center, was particularly intimidating. (I planted a ringer in the audience: Sacha Wunsch-Vincent of the OECD, who is thanked in the acknowledgments of the survey, was on hand in case I was left stammering).

The conversation was extremely useful. One question considered whether patents are the most appropriate mechanism to incent innovation -- and whether I privileged it wrongly in my analysis. My reply was that the patent system emerged from two antecedents: first, indefinite royal privileges and monopolies on one hand, and the custom of trade guilds where innovation is kept secret on the other. Neither was efficient for progress. Instead, providing a property right to ideas allows it to be both transfered as an asset, as well as protected from imitators who would be free-riders on that investment.

Prof. William (Terry) Fisher focused our thoughts on how to
conceptually reform the patent system, or design an intellectual
property regime that would lead to a desirable outcome, that may not need patents. For instance, would it not be sensible to examine the role of patents in a sector-by-sector basis rather than force all technologies to be treated the same way, as is the situation today. He usefully distinguished between the goals of "innovation" and "commercialization," noting that different aspects of the intellectual property system fuels different objectives. Moreover, he noted the role that "path dependence" plays in many intellectual property debates -- we are unable to conceive of a different system because we have the one that exists today. Unsurprisingly, I found myself agreeing with most of the things that Terry said.

Meanwhile, Jim Moore did a splendid job of keeping the conversation going with probing question. I was left impressed by the degree to which economics and law share a common approach: it is about how to create a set of incentives to produce a desired behavior. The thoughtful critiques were helpful for my understanding of the issues, and I enjoyed being forced to defend my views. Next time, clearly I should do a Berkman brown-bag before the article goes to print, not after...!