Why patents don't protect.

Some rough notes on why patents don't protect and why the "pickets and fence" approach doesn't work ( in prep for the Patent Paradox, BUS 111.)

- Breach of a civil obligation is called a "tort", which is a French word meaning "wrong."

- Breach of a property right is called "trespass."

- Property rights focus on a static condition or status. The primary question is whether the complaining party owns land, a copyright, a patent etc.

- Once the property owner has proved the status of ownership, he or she has a nearly automatic remedy for even trivial interferences with the right. The property owner can win a case without having to prove fault or negligence on the part of the defendant. (Idea Rights, by H. Anawalt.)

Since patent is a property right, it is easy to think that it provides protection similar to rights on physical property, e.g. real estate. In reality, the same technology is covered by many patents and, as a result, nobody has the exclusive right to the property. Further, in most patent cases, it is unknown how many patents apply to the technology in question. Therefore, you never know who is going to show up and claim the "territory."

In Consumer Electronics and W3C the issue is resolved through a slow process of standardization, where multiple parties have sufficient time to discover, submit, and arbitrate their claims.

In IT capturing market share as soon as possible seems to be more important. Companies rush their solutions to the market without going through the slow and relatively expensive process of discovering patent rights. It's a good strategy, because if the product doesn't "stick," it doesn't make sense to make an upfront investment in legal resources. If the product is successful, its producer gets "surprised" with patent claims from others, which is a direct result of the initial business strategy.

tags: patents, course, control, theory