Kyle St. Romain | BUSINESS | 10.09.2012 @ 1:00 pm
(Every week, Kyle St. Romain will talk about the business and legal side of the app world. While his opinions don’t always reflect those of Rocksauce Studios, you should hear him out…the guy knows his stuff!)
Do Intellectual Property Laws in the United States help or hurt innovation? Indeed, this question has gotten a lot of attention in recent years, particularly as it applies to the software industries. Not wanting to feel left out, I too find myself debating my way through the treacherous waters of IP law. While my input is mostly a way to feed into an infinite loop of procrastination, the underlying principles aren’t without merit. It also gives me an opportunity to sound smart, even if my dog is the only living thing that agrees with me (at least while I’m holding treats in my hand).
Since the world has yet to care about what I think, let’s consider some recent thoughts from two patent pundits – Richard Posner and Richard Epstein – in what I’ve aptly dubbed “The Battle of the Dicks”.
Posner Throws Out Apple v. Motorola saying that the U.S. Patent System is “Chaos”
Richard Posner, one of the most prolific judges of our time, serves the United States Court of Appeals for the Seventh Circuit. He was the presiding judge in the Apple v. Motorola patent suit that has recently been a center of attention. By presiding, I mean to say he threw the case out calling the entire U.S. patent system “chaos”. While Judge Posner doesn’t usually get to hear many patent cases, it just so happened that he was temping as a trial judge at the time and got lucky with a big fish. His opinion was appealed, and it’s predicted to be overturned by the Federal Circuit.
Epstein Says Posner “Gets it Wrong”
In response to Posner’s opinion dismissing Apple v. Motorola, Richard Epstein, another well-respected legal mind, fired back saying that, Richard Posner Gets It Wrong. The full article is definitely worth a read, but if you’re busy (and couldn’t figure out his thesis from the title), Epstein concluded with: “Let us hope that Posner’s mysterious patent adventurism dies a quick and deserved death.” And I thought my friends were harsh.
Posner Rebuts
On September 30, Posner published an article on his blog maintained with Nobel Prize winning economist Gary Becker titled, Do patent and copyright law restrict competition and creativity excessively? In it, he expressed his concern that “… that both patent and copyright protection, though particularly the former, may be excessive” is real, and is indeed a debate that has attracted a wider audience in recent years.” Excessive or not, the debate certainly has come to the forefront of tech and legal discussions.
While Posner seems to agree with patent protection in the pharmaceutical industry, he disagrees with its application in the software industry. Many others also agree with the need to eliminate software patents.
Switching Gears to Copyright Protection, Gangnam Style
Before I go, I want to quickly introduce you to a recent blog from the Harvard Business Review titled, Marketing, Gangnam Style. The author’s thesis is that Gangnam Style’s worldwide success is due, at least in part, to its lack of copyright protection. While copyright law doesn’t paint the whole picture (it’s a darn good song on its own), the article makes a good point that wasting resources on copyright protection is an unnecessary obstacle to going viral (and mentions some other good marketing lessons we can all learn from).
What do you think? Does the fact that Apple and Google now spend more on patents than they do on R&D influence your opinion at all? Let’s start our own intellectual (property) debate in the comments below.