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« ''Wall Street Journal le 16/07/2008 10:00 par By L. GORDON CROVITZ'' http://online.wsj.com/article/SB121599469382949593.html
Patent Gridlock Suppresses Innovation
The Founders might have used quill pens, but they would roll their eyes at how, in this supposedly technology-minded era, we're undermining their intention to encourage innovation. The U.S. is stumbling in the transition from their Industrial Age to our Information Age, despite the charge in the Constitution that Congress 'promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'
For the third year in a row, Congress has just given up on passing a law reforming how patents are awarded and litigated. This despite growing evidence that for most industries, today's patent system causes more harm than good. Litigation costs, driven by uncertainty about who owns what rights, are now so huge that they outweigh the profits earned from patents.
It's true that defining intellectual property is hard at a time when new technologies upset the traditional ways of protecting rights, as debates over digital piracy make clear. But in the case of patents, poorly defined property rights for inventions are leading even the biggest companies to take desperate measures, including banding together to protect themselves against claims of increasingly broad and vague patents.
Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they may want to use some day and that otherwise could end up in the hands of 'patent trolls.' These firms buy up old patents not to produce anything, but instead to work the system to extract settlements. A similar group formed against trolls to protect the Linux open-source operating system. A Google executive explained that helping to buy up and license patents is the 'legal equivalent of taking a long, deep, relaxing breath.' Companies can rest easier, and legitimate inventors get paid for their work.
These corporate trusts seem like odd ways to protect products, but the memory is still fresh of the BlackBerry device almost being forced to shut down. Parent company Research in Motion paid more than $600 million in 2006 to settle a case. But in this and many other cases, companies can't be sure whether or not they are complying with patent law. For example, by one estimate there are more than 4,000 patents that must be reviewed and potentially licensed by firms selling products or services online. The legal abuses arising from uncertainty are legion. More than 100 companies are being sued for alleged patent infringement by using text messaging internationally.
The proposed law in Congress would have reduced potential damages to the value of the technology, not the full value of the completed product. Another uncertainty would have been reduced by moving to the first-inventor-to-file system, instead of our more ambiguous first-to-invent standard. The larger problems would have remained, including the trend of awarding vague patents, coupled with a still-primitive system for notifying others of the existence of patents.
Yet the fault line over patent reform signals the deeper problems. Many pharmaceutical companies lobbied against the proposals, fearful of reduced value in their key intellectual property. In contrast, most technology firms supported the reforms, worried more about uncertainty in the law than about the value of their patents.
Both sides may be right. New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, 'Patent Failure,' found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.
These are shocking findings, but they point to the solution. New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs.
Our patent system for most innovations has become patently absurd. It's a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it. »
Cette revue de presse sur Internet fait partie du travail de veille mené par l'April dans le cadre de son action de défense et de promotion du logiciel libre. Les positions exposées dans les articles sont celles de leurs auteurs et ne rejoignent pas forcément celles de l'April.
Les articles de presse utilisent souvent le terme « Open Source » au lieu de Logiciel Libre. Le terme Logiciel Libre étant plus précis et renforçant l'importance des libertés, il est utilisé par l'April dans sa communication et ses actions. Cependant, dans la revue de presse nous avons choisi de ne pas modifier les termes employés par l'auteur de l'article original. Même chose concernant l'emploi du terme « Linux » qui est généralement utilisé dans les articles pour parler du système d'exploitation libre GNU/Linux.