Research Shows: You Don't Need Patents To Disclose Information | Techdirt 2012-06-28


“One of the things that we frequently hear in defense of patents (and to a lesser extent, copyrights) is that without that kind of protection, companies would never share information with one another about certain products, because it would be way too easy to simply copy the idea and run with it... Jerry Brito's Surprisingly Free podcast recently had a wonderful interview with Michael Burstein from Cardozo Law School, in which he talks about his recent research showing that a ton of information exchange occurs in the absence of intellectual property protection, and that inventors and companies figure out ways to protect themselves against someone just flat out copying their idea and running off with it. It's an area of research that is quite fascinating, because in the past, I'd thought that the argument about information sharing actually was one of the more compelling arguments for patents. Now... I'm beginning to question that assumption as well. The key thing that Burstein realized, was that information isn't quite as ‘clear cut’ as people think it is, thus you can share some information without revealing all of the key points ... ‘information is complex and multifaceted, subject to some inherent limitations but also manipulable by its holders. These characteristics give rise to a range of strategies for engaging in information exchange, of which intellectual property is only one. Information holders can use the characteristics of information itself as well as contractual and norms-based mechanisms and other legal or business strategies to achieve exchange. And examples drawn from fields as diverse and disparate as software and biotechnology show that entrepreneurs and inventors use these strategies alone or in combination to effectively link their ideas with capital and development skills, often without intellectual property playing a significant role in the transaction.’ Burstein argues that anyone relying on the claim that IP is needed to facilitate information exchange appears to be flat out wrong, based on his empirical research. ‘Intellectual property is therefore not necessary to promote robust markets for information and is, in fact, just as contingent and context-specific a solution to the paradox as the alternatives described here. At the very least, then, there is reason to doubt that commercialization theories founded upon information exchange provide a standalone justification for intellectual property. This article urges caution in policy interventions that seek to respond to the disclosure paradox and sets the stage for future empirical research to better understand the dynamics of information exchange strategies and the social welfare costs and benefits that may accompany them.’ One example used in the report is how biotech firms share information without relying on intellectual property laws. They basically do a bit of a dance, in which they sign agreements and share bits of information with each other, which really seem to serve the purpose of testing whether each other is trustworthy. And, of course, because firms are involved in many, many transactions, there's a reputational issue at play here: a company that simply copies an idea presented to it by another will quickly find itself shut out of future opportunities to work with innovative companies. These are issues that patent system defenders and policy makers seem to rarely consider...”



08/16/2012, 06:08

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Tags: oa.policies oa.comment oa.patents oa.interviews oa.studies



Date tagged:

06/28/2012, 16:58

Date published:

06/28/2012, 17:28