But the United States now live in a competitive world in which its economic dominance is long gone. Developing proprietary technologies and the skills that go with them is the only way to defend US workers from the downward pressure of factor price equalization.
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As the government role in R&D fades, the need for stronger private incentives grows. The standard incentive is to give inventors a monopoly on the right to prduce the products that can be created withtheir knowledge - a right that they can use or sell. Whether we like it or not, the corollary of fading government efforts is the need for stronger private monopoly rights.
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Without stronger systems of protection, companies will defend their economic positions by keeping their knowledge secret. Articles about research papers whose publication is deliberately delayed often pop up now in the scientific press. Secrecy is a much bigger deterrent to the expansion of knowledge than any monopolistic system of protection for intellectual property rights. An investigator who knows what is known can go to the next step. One who doesn't wastes time reinventing what is known or wandering in an intellectual wilderness looking for a path that someone else has already found.
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There is no single right answer about how to make that trade-off. It is a judgment call. But it is a call that should not be made by a judgee. Judges do not think about what makes sense fro the perspective of accelerating technological and economic progress. Their concern is with how new areas of technology can be inserted into the legal fring interpretations. Such lazy law-writing practices do not make for good economics or sensible technology policies. The right approach would be to investigate the underlying economics of an industry in order to determine what incentives are necessary for its successful development.
Those are socioeconomic decisions that should be made in our legislatures, not in our courts.
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In our modern economies, private monopoly power should be less worrisome than it was when our patent system was originally set up. As alternative technologies proliferate, there are fewer and fewer with inelastic demand curves that would allow companies to raise their prices arbitrarily and earn monopoly returns.
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As monopoly power wanes and social interests in encouraging the development of new intellectual property grow, the balance in our system should shift toward encouraging the production of new knowledge and be less concerned about the free distribution of existing knowledge. Tighter or longer-term patents and copyrights would seem to be warranted. Laws on intellectual property rights must be enforcable or they should not be laws. ... Laws that cannot or will not be enforced make for neither good law nor good technology policies. ...
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... the failure to develop adequate property rights lies behind many U.S. problems with air and water pollution. Free usage - that is, no enforceable property rights - is sensible for each individual, but it ends up depriving the whole community of clean air and water. So, too, with intellectual property rights: free usage of knowledge ends up with societies that create too little new knowledge.
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In seeking an alternative approach, the US system for settling water rights disputes in irrigated areas might serve as a model. Federal water masters are given the authority to allocate water in dry years and to settle disputes quuickly because crops die quickly.
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The prevailing wisdom among those who earn their living within our system of intellectual property protection is that some minor tweaking here and there will fix the problem. Much of this wisdom flows from nothing more profound than the belief that to open up the system to fundamental change would be equivalent to opening Pandora's box. All can vividly see themselves as potential losers. Few consider the private and public gains that might accrue from a different system.
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The optimal patent system will not be the same for all industries, all type of knowledge, or all type of inventors. Consider, for example, the electronics industry and the pharmaceutical industry. The first wants speed and short-term protection because most of its money is earned soon after new knowledge is developed. The seconde wants long-term protection because most of its money is earned after a long period of testing to prove a drug's effectiveness and the absence of adverse side effects. ...
Costs, speed of issuance, and dispute-settlement parameters could vary. Let filers decide what type of patent they wish to have. In no other market do we decide that everyone wants - and must buy-exactly the same product. ...
The world's current one-dimensional system must be overhauled to crate a more deiffentiated one. Trying to squeeze today's rights simply won't work. One size does not fit all.
This article was subject of some discussions in the
swpat.ffii.org mailing list:
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