What effect would shortening the patent term have? Positive ones, according to author Reuven Brenner
Reuven Brenner
Dr Reuven Brenner lectures and holds the Repap Chair in Economics at McGill University. His last book is The Force of Finance (Texere 2002). An article drawing on this piece was published in The Wall Street Journal (US and European editions) in November
2002, entitled ‘Reforming the idea race’.
JAY WALKER, the CEO of Priceline.com, profiled during the internet boom as ‘An Edison for a New Age?’, admitted that the bulb which lit up the drive to start his company was this. He just read about three mathematicians
who won a patent based upon their algorithm in cryptography, and set up a company.
Walker Digital registered then 12 patents on business methods, including two
that underlie Priceline.com, and had 240 other patents pending. However, Jeff
Bezos, Amazon founder, suggested that the length of patents on the ’net should
be shortened from seventeen to five years.
When Prime Minister Tony Blair and then-President Clinton
came out with the view of imposing restrictions on just what exactly companies
can patent in the field of genetics to start with, biotech went through a predictable
mini-crash. The impact of their statement would not have been so significant
if patents had shorter lives than the 17 years’ life that the law gave to them
from the moment of their approval. The law now allows 20 years—from the time
of application, having assumed that, historically, roughly three years elapsed
between application and approval.
Let’s go back to fundamentals: Where is the number 17 coming
from? Why not five? Why not 10? If found that the numbers are arbitrary, and
since such drastic decrease in the life of patents would diminish share prices—of
pharmaceuticals in particular—it is time to make a deal and diminish the life
of patents together with a drastic change in tort and antitrust laws,
and regulations. The goal would be to move tort law and regulations—the effects
of which are either significant price increases, or making products and services
disappear—away from the present trend of "absolute standard" toward
"personal responsibility". The latter is, in fact, a feature of western
European tort law: that’s why the French, who still smoke like chimneys, can’t
contemplate suing cigarette companies. As to antitrust: the goal would be to
eliminate treble damages—a non-existent feature in European law—and allow parties
to be compensated for the legal costs of frivolous suits (again, the case of
western Europe’s legal tradition).
So where is the 17-year patent life coming from?
The earliest recorded English patent was granted in 1331 to
John Kemp the Fleming so that he would be encouraged to import his weaver’s
mystery. By the seventeenth century, however, the English Crown granted such
monopolies not only for attracting qualified immigrants—draining the Continent
from brains—to establish trade or industry, but, eventually, also to protect
guilds against competition, to reward for royal favour and fill the Crown’s
coffers. The latter abuses led to the English Parliament to enact the Statute
of Monopolies in 1623 by which all form of monopolies, with an important exception,
were abolished. This exception related to patents granted for bringing ‘new
manufacture within this realm,’ and its main object being craftsmen from Amsterdam,
the city that was becoming the miracle of the seventeenth-century world. The
monopolies were to last for a term of 14 years, to reward the entrepreneur until
he trains two generations of apprentices on English soil. In fact, the English
textile industry at the time was one of those developed with the assistance
of "qualified immigrants", and helped England catch up with—and eventually
leapfrog—the Dutch Republic.
In the US, the first patent act of 1790 adopted the 14 years’
term, drawing on the seven-year trade apprenticeship number, and with no option
of extension. The 1836 patent act added a seven-year renewal term, extending
the life of the patent to 21 years. The present 17-year term is a compromise
dating back to 1861, when the House wanted to retain the fourteen-plus-seven
option, and the Senate that wanted to go back to the 14-year limit. We lived
with the political 50–50-and-rounded compromise until 1999, when the extension
to 20 years was standardized around the world.
What would happen if the life of patents was shortened?
Since prices of many patented goods would decline, there would
be less piracy around the world. If the change was done in isolation, it would
lead to a drastic decrease in share prices of pharmaceuticals, though raising
share prices and rapidly expanding employment in the generic part of the industry.
However, if the change was done together with significant revisions in tort
law and regulations, both of which had the effect of significantly increasing
the average costs of bringing new drugs to the market and their prices, the
effect would be a win–win–win for consumers, producers and investors.
And it may not be true that diminishing the life of patents
combined with the legal and regulatory changes would have the effect of diminishing
the rate of innovation over the longer haul be it in the US or elsewhere. During
the nineteenth century, Belgium attracted investments by operating the laxest
company law of all developed countries in Europe: among others, they did not
enforce patent laws. Switzerland did not have a patent law until 1887—and was
the reason that German chemical and aluminium companies opened plants there.
The 1887 Swiss law still covered only inventions that could be represented by
a model, leaving other processes unprotected. Recall too that Philips’ initial
success, first in Holland and then all over Western Europe, was due to copying
Edison’s lamps, without paying royalties to Edison interests. Briefly: Belgium,
the Netherlands and Switzerland attracted capital and investment and developed
fast—though they had no patent laws to speak off.
Though there is no doubt that Edison and his family might
have lost money, there is no proof that allowing patents to last 17 years, rather
than five or ten does not simply give too much monopoly power and have undesirable
consequences. It well may be that tort laws and regulations—and the legal profession—would
not be expanding, if society did not perceive that companies’ deep pockets were
due to having too much monopoly power, derived from patents’ (or copyrights’,
for that matter) arbitrary, overly long lives. Lawyers, politicians and regulators
perceived the monopoly rents—and ventured into the resulting "redistributing
the rents" business, with, by now, disastrous effects. The law of unintended
consequences at work, and the pendulum swinging too much.
The historical debate on patents between Thomas Jefferson
and Benjamin Franklin, on one side, and James Madison and Alexander Hamilton,
is illuminating, indicating an even more far-reaching solution than the political
compromise of simultaneously diminishing the life of patents and changing tort
laws and regulations.
Thomas Jefferson and Benjamin Franklin were generally opposed
to awarding limited monopolies to inventors. James Madison and Alexander Hamilton
were in favour, though Madison wanted to give inventors monetary prizes, or
other rewards rather than monetarily open-ended monopoly power. The 1787 promise
from Congress to James Rumsey of 30,000 acres of land in Ohio if he could demonstrate
a steamboat that travelled up the Ohio River reflects the latter idea. (In fact,
another person too, John Fitch, got the same reward for the same invention at
the time). However, when debating their solutions, all four were, in fact, interested
in the Federal government’s promotion of scientific endeavours. The significant
debates were over details of implementation and the providing direct Federal
support for science—but without violating the spirit of the constitution. The
result with which the US has (roughly) lived ever since, as far as patents are
concerned, has been a compromise, combining elements of Hamilton’s and Jefferson’s
bills.
Since, for better and for worse, the Federal support to the
sciences is today a well-established idea, and entirely separated from the subject
of patents, it’s about time to re-evaluate the latter. And once a deal is worked
out and the life of patents is lowered, the next step could be to follow up
on Jefferson and Franklin, privatize the "market of ideas", and let
innovators float their "idea-prospectus" to investors in well-organized
auction markets.
Of course, not auction markets of the arbitrage-creating,
ill-thought-California-electricity-regulatory variety. •