Tag: patents

Why Hayek Would Have Hated Software Patents

In his famous essay “The Use of Knowledge in Society,” Friedrich Hayek argued that the socialists of his day falsely assumed that knowledge about economy could be taken as “given” to central planners. In reality, information about the economy—about what products are needed and where the necessary resources can be found—is dispersed among a society’s population. Economic policies that implicitly depend on omniscient decision-makers are doomed to failure, because the decision-makers won’t have the information they need to make good decisions.

In a new paper to be published by the NYU Annual Survey of American Law, Christina Mulligan (who drafted a recent amicus brief for Cato) and I argue that the contemporary patent debate suffers from a similar blind spot. A patent is a demand that the world refrain from using a particular machine or process. To comply with this demand, third parties need an efficient way to discover which patents they are in danger of infringing. Yet we show that for some industries, including software, the costs of discovering which patents one is in danger of infringing are astronomical. As a consequence, most software firms don’t even try to avoid infringing peoples’ patents.

Patents are often described as “intellectual property,” and patent law provides for harsh property-like remedies against patent infringers. But a property system that is so convoluted that ordinary firms can’t figure out who owns what isn’t a property system at all. Genuine property rights enhance economic efficiency by bringing predictability to the allocation of scarce resources and thereby promoting decentralized decision-making. Software patents retard economic efficiency by subjecting software firms to a constant and unavoidable threat of litigation for accidentally infringing the patent rights of others. Hayek would not have approved.

Our paper is available from SSRN.

To Spur Technology Innovation, Stop Pulling on the Rope

I spent the morning at The Atlantic’s Washington Ideas Forum. Before the big names were to do their spiels during the afternoon today and tomorrow morning, there were a series of breakout sessions, among which was one on “Technology Innovation.”

Our suggested “points to ponder” were:

  1. Can our nation regain our competitive edge through innovation?
  2. Will our knowledge and information-based workforce continue to offer cutting-edge technologies to improve the way we live and work?
  3. What measures can we implement to foster creativity and encourage companies to grow intelligently? and
  4. Will the paradigm of how people work, think and communicate be meaningfully transformed as a result of technology? Or is this another short-term trend, with no long term changes?

At least one of the other participants thought the summary of the discussion I gave in the latter half was pretty good, so I’ll share my takeaway here roughly as I did there—maybe sounding just a little more “Cato-y” here.

First, note the conspicuous use of collective pronouns in the first three discussion points. They obscure the goals and actors quite nicely, summarizing to: There is an undefined group out there that we want to have do an undefined set of things amounting to innovation.

I was reminded of the metaphor for spurring economic progress (if I recall, and I don’t recall where I first heard it): Spurring economic progress is like pushing a rope. You really can’t do it. Someone has to pull it, and the job of policymakers is simply to not pull on the wrong end.

In our brainstormy session, the ideas generally focused on pushing our end of the rope. “We” need more basic research and R&D. “We” need more and better education in science and technology. “We” need more inspired leadership, the spur of a new Sputnik.

These things are all probably inputs to innovation in some sense. None of them, I don’t think, will produce innovation as a matter of course. And nobody knows where to direct these efforts so that they do produce innovation.

A few other ideas emerged, ways that public policy can stop pulling on the rope. One was letting immigrants stay in this country—particularly the ones who have just earned advanced degrees—and welcoming them to stay. Another one was reducing the role of patent strategy in tech-business decision-making. Patents seem no longer to be primarily a spur to innovation, but a strategic arsenal used offensively or defensively by tech giants. A third idea that nearly surfaced was tax cuts, but its author in the conversation pivoted from what other countries are doing with tax policy to “national competitiveness,” never actually saying that U.S. tax cuts would spur business activity and innovation.

Arriving back at the office, I chanced to come across some thinking that would have contributed mightily to the discussion: NYU professor of economics Bill Easterly talking about the relationship of individual rights to economic growth, development, and innovation:

[I]ndividual rights is also a way to mobilize all the knowledge in society that we need to make the economy work. It’s the individual that has the particular knowledge so that they know how to run their factory, to employ people, to be a worker themselves, to start new businesses.

We’ll talk later about examples—like the guy in Rwanda, who stumbled upon a very unexpected success. He figured out—this is not something anybody would have predicted—that Rwanda could prosper by exporting gourmet coffee, which you can find in New York’s best coffee shops.

One reason that worked so well for Rwanda, is they have a tremendous infrastructure problem. It’s very hard to get heavy stuff shipped abroad because they are landlocked, they’re surrounded by countries with lousy roads, lousy ports. But gourmet coffee is something that you can create with lots of labor, which Rwanda does have a lot of, and it has very high value-to-weight ratio. So you just put it on the airplane, and ship it to New York.

So, there was no expert economist that flew in and told Paul Kagame, the autocrat of Rwanda, “Here’s the plan: Identify gourmet coffee as the growth industry worldwide. That’s the recipe.” None of that happened.

These successes are always a surprise. That’s why the expert top-down plan doesn’t work. You need the entrepreneur, you need the consumer, you need the market feedback, you need the democratic feedback, and all of this is built on this large edifice at the bottom of individual rights.

Defend people’s rights to own and use their property, however they might imagine to do that, then watch them deliver their surprises. That’s innovation policy. Stop pulling on the rope.

Cato’s First Brief in a Patent Case — On Constitutional Grounds

Recognizing an opportunity to make quick and easy money, private attorneys have been suing companies under the False Marking Statute, 35 U.S.C. § 292.  This law allows any person to sue to enforce a federal criminal statute that prohibits anyone from labeling an unpatented product with a patent number or to advertise a product with a patent number that is not actually patented. 

The penalty for violating this law is $500 per offense, which has been interpreted to mean each and every product falsely marked.  For instance, if a business is charged with falsely marking 100,000 products, it could be liable for $50 million.  Private attorneys suing under this statute seek massive amounts in damages and then try to settle with the defendant for a fraction of that cost (still a large amount of money).  Companies often settle even if the case against them has little merit because they do not want to risk such a massive amount in damages.

The longtime toy manufacturer Wham-O, however, successfully defended such a lawsuit in court, provoking the plaintiffs’ lawyers to appeal to the Federal Circuit (the only appellate court below the Supreme Court that can hear patent cases).  Cato, along with my colleague, Walter Olson — who has studied these patent marking cases — filed an amicus brief supporting Wham-O on constitutional grounds.  We argue that the False Marking Statute fails to give the executive branch, through the attorney general, control over the enforcement actions brought at its behest.  By allowing any person to sue and then receive half of the damages, the law abrogates the executive power to enforce the law and places it in the exclusive hands of the private attorney. 

There is clear precedent for this argument:  In the 1988 case of Morrison v. Olson, the Supreme Court upheld the independent counsel statute because it gave the attorney general “sufficient control” over the counsel’s hiring, firing, and investigative scope.  Other courts have held that for a private person to prosecute what is called a “qui tam” action under the False Claims Act — essentially stepping into the shoes of the government — the government must maintain “sufficient control” over the litigation.  The False Marking Statute does not provide sufficient control, or any control, and therefore violates Article II’s “Take Care Clause,” the font of the executive branch’s enforcement duties.

Ultimately, the separation of powers, the foundation for the governmental structure created by the Framers, ensures that laws are enforced by someone accountable to the people, the Executive. The False Marking Statute divests the president of this authority, so the Federal Circuit should strike it down as violating the Constitution’s separation-of-powers structure.

The Federal Circuit will hear FLFMC, LCC v. Wham-O, Inc. this spring.