The Wrong Kind of Creativity

by on December 1, 2006 · 18 comments

Regular readers might recall my software patent of the week for September 2, which covers the concept of controlling music playback on a computer screen. Now, via TechDirt, comes news that the lawyers responsible for that shakedown has put out a press release bragging about his accomplishment. And it really illustrates what’s wrong with our patent system:

Starkweather wrote the patent in 1996 for David Contois of Contois Music Technology. The concept consisted of a desktop computer holding multiple songs with an interface allowing a user to select three songs and play them on an electric grand piano. Starkweather saw the broader value and broke the patent into three elements: remote music storage, selection of music to download, and playing music on a music device.

Starkweather realised that downloading movies was an obvious variation to downloading music. It was data manipulated in the same way. “Sometimes it’s easy to break an invention down to its key components,” Starkweather says. “That’s why patent writing is an art, not a science, and requires creativity.”

There are a couple of interesting lessons from this. First, it’s obvious that this patent did nothing to advance the progress of science and the useful arts. The inventor had already created his invention when Starkweather came along, and had no expectation of getting a patent for it.

Second, this should make it clear that patents do create incentives for creativity. It’s just not the kind of creativity that the patent system is supposed to encourage. The real innovator here was Starkweather, who managed to get a patent that’s much broader than was merited by the actual invention, not Contois. Economists call this kind of creativity “rent seeking”–gaming the political system to extract wealth from others. Starkweather is in the same category as lobbyists and ambulence-chasing trial lawyers.

  • http://weblog.ipcentral.info/ Noel Le

    …obvious that this patent did nothing to advance the progress of science and the useful arts.

    Tim, patents, by themselves, never do anything for the progress of sciences and useful arts. Its the incentive they give innovators to invest in and commercialize inventions that achieves this goal.

  • http://weblog.ipcentral.info/ Noel Le

    …obvious that this patent did nothing to advance the progress of science and the useful arts.

    Tim, patents, by themselves, never do anything for the progress of sciences and useful arts. Its the incentive they give innovators to invest in and commercialize inventions that achieves this goal.

  • http://www.techliberation.com/ Tim

    Noel, the point is that this invention would still have occurred if it weren’t patentable. If that were true of software patents in general (that is, if this is a representative software patent, rather than an anomaly) then the software patent system doesn’t promote the progress of science and the useful arts.

  • http://www.techliberation.com/ Tim

    Noel, the point is that this invention would still have occurred if it weren’t patentable. If that were true of software patents in general (that is, if this is a representative software patent, rather than an anomaly) then the software patent system doesn’t promote the progress of science and the useful arts.

  • http://weblog.ipcentral.info/ Noel Le

    The exclusivity provided by patents enable both ex ante and ex post recoupment of invention/commercialization costs. By saying that an invention would not have been created absent patent protection only touches on one aim, and one benefit, of the patent system.

    Who would bother investing capital to commercialize and improve on an innovation if they did not have some kind of limited exclusivity. Sure, you can talk about ‘non-monetary” incentives, but that does not help the firm trying to pull in revenue. You can talk about other value-add beyond the technology, but that would ignore realities like the revenue cap that plagues FOSS distros who need to struggle to differentiate themselves outside the source code.

    Again, its hard to generalize from one patent to the entire software patent system. I haven’t seen any evidence that software patents have lower levels of cross-citation than other kinds of patents; such evidence would indicate that software patents are generlaly of lower quality than other kinds of patents (pharma, semiconductor, etc).

  • http://weblog.ipcentral.info/ Noel Le

    The exclusivity provided by patents enable both ex ante and ex post recoupment of invention/commercialization costs. By saying that an invention would not have been created absent patent protection only touches on one aim, and one benefit, of the patent system.

    Who would bother investing capital to commercialize and improve on an innovation if they did not have some kind of limited exclusivity. Sure, you can talk about ‘non-monetary” incentives, but that does not help the firm trying to pull in revenue. You can talk about other value-add beyond the technology, but that would ignore realities like the revenue cap that plagues FOSS distros who need to struggle to differentiate themselves outside the source code.

    Again, its hard to generalize from one patent to the entire software patent system. I haven’t seen any evidence that software patents have lower levels of cross-citation than other kinds of patents; such evidence would indicate that software patents are generlaly of lower quality than other kinds of patents (pharma, semiconductor, etc).

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Noel: Your logic is misplaced. Patents are not a form of “incentive”. The basis for creativity depends on numerous factors, some people are creative and do it for fun. Yes altruism does exist! They may not be in it for the money. Therfore they have no need for a patent system. They obtain pleasure by adding to the public domain. Others create to make a living and it is unfortunate that we view creativity from this limited perspective. Consequently, if they need money (the actual incentive), they would need a patent system. At best the patent system is a limited form of “protection” for creativity that adds to the progress of science and useful arts. Simply rearranging existing components is not patentable eventhough it may be creative.

  • http://www.blogger.com/profile/14019452 Steve R.

    Noel: Your logic is misplaced. Patents are not a form of “incentive”. The basis for creativity depends on numerous factors, some people are creative and do it for fun. Yes altruism does exist! They may not be in it for the money. Therfore they have no need for a patent system. They obtain pleasure by adding to the public domain. Others create to make a living and it is unfortunate that we view creativity from this limited perspective. Consequently, if they need money (the actual incentive), they would need a patent system. At best the patent system is a limited form of “protection” for creativity that adds to the progress of science and useful arts. Simply rearranging existing components is not patentable eventhough it may be creative.

  • http://weblog.ipcentral.info/ Noel Le

    Steve, I recognize there are other forms of incentives, but patents are a form (although not the only one) of incentive.

    I would not call making money a narrow perspective. Afterall, the American digital economy, the envy of the world, is based heavily on our venture capital and patent systemm, which protect capital investments of profit seeking firms.

  • http://weblog.ipcentral.info/ Noel Le

    Steve, I recognize there are other forms of incentives, but patents are a form (although not the only one) of incentive.

    I would not call making money a narrow perspective. Afterall, the American digital economy, the envy of the world, is based heavily on our venture capital and patent systemm, which protect capital investments of profit seeking firms.

  • http://www.techliberation.com/ Tim

    Who would bother investing capital to commercialize and improve on an innovation if they did not have some kind of limited exclusivity.

    Noel, this is silly. It’s an example of Ed Felten’s pizzaright fallacy. Companies improve their products because making their product better makes it more likely that people will buy it, hence increasing their profits. Giving a company a patent doesn’t change that incentive in the slightest.

  • http://www.techliberation.com/ Tim

    Who would bother investing capital to commercialize and improve on an innovation if they did not have some kind of limited exclusivity.

    Noel, this is silly. It’s an example of Ed Felten’s pizzaright fallacy. Companies improve their products because making their product better makes it more likely that people will buy it, hence increasing their profits. Giving a company a patent doesn’t change that incentive in the slightest.

  • http://www.pff.org Noel Le

    Tim if other firms can free ride an innovator may risk less capital to improve a product. Its hard arguing with you on this though b/c you dont think innovation requires capital, and see the demise of commercial industry as good for consumers; at the same time you criticize software patents for purportedly causing the very distopia you advocate.

  • http://www.pff.org Noel Le

    Tim if other firms can free ride an innovator may risk less capital to improve a product. Its hard arguing with you on this though b/c you dont think innovation requires capital, and see the demise of commercial industry as good for consumers; at the same time you criticize software patents for purportedly causing the very distopia you advocate.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    Noel, it’s ridiculous to believe venture capital would immediately dry up in the absence of patents. The market would simply use something else (copyrights, developer reputation/skill, etc) as assurance of a solid investment.

  • http://www.cs.westga.edu/People/LewisBaumstark Lewis Baumstark

    Noel, it’s ridiculous to believe venture capital would immediately dry up in the absence of patents. The market would simply use something else (copyrights, developer reputation/skill, etc) as assurance of a solid investment.

  • http://weblog.ipcentral.info/ Noel Le

    Lewis, I wasn’t saying that VC funds would fold without patents. In fact, given the time it takes to receive a patent, new firms often get VC money before the obtain any patents (if at all).

    My point about VC is that its a distinctive trait of the American innovation economy, and one that does a lot to explain how profit motive underpins the success of our Internet economy.

    You raise a good point though- that firms can leverage other value capture other than patents. The innovation economy will not collapse if we don’t have software patents. But patents do perform their role in incenting R&D; activity and commercialization beyond levels that would occur absent patent protection. Further, patents are preferable to forms of exclusivity such as trade secrets and copyright, so they are important.

    And remember, its the incentive patents give that promotes the progress of the sciences and arts, not the patent itself, as Tim seems to understand it.

  • http://weblog.ipcentral.info/ Noel Le

    Lewis, I wasn’t saying that VC funds would fold without patents. In fact, given the time it takes to receive a patent, new firms often get VC money before the obtain any patents (if at all).

    My point about VC is that its a distinctive trait of the American innovation economy, and one that does a lot to explain how profit motive underpins the success of our Internet economy.

    You raise a good point though- that firms can leverage other value capture other than patents. The innovation economy will not collapse if we don’t have software patents. But patents do perform their role in incenting R&D activity and commercialization beyond levels that would occur absent patent protection. Further, patents are preferable to forms of exclusivity such as trade secrets and copyright, so they are important.

    And remember, its the incentive patents give that promotes the progress of the sciences and arts, not the patent itself, as Tim seems to understand it.

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