Alex Wexelblat wrote last week that company policies forbidding their employees from looking at patents is a result of incompetence by those companies lawyers, but Mike Masnick explains that companies actually have a very good reason:
What’s most likely happening is that the lawyers know that you get treble damages if you can prove willful infringement, and you do that by showing that the infringer knew of the patent. So, the way you avoid that is you don’t look at any patents. This is exactly the opposite of what the patent system is supposed to be about. In fact, many patent system defenders insist that “public disclosure” is the key benefit of the patent system — but that’s a complete myth. David Levine and Michele Boldrin have already shown why patents are unlikely to increase the disclosure of inventions (because the only people who will disclose are those who know their “invention” would become public no matter what, otherwise they’re better off keeping it secret), while other reports point out that patent attorneys are increasingly focused on filing vague patents that can cover lots of things, without actually disclosing anything useful. Now we can add this growing fear of willful infringement to the reasons that public disclosure isn’t what it’s cracked up to be — and, in fact, may be hurting innovation by forcing those knowledgeable in a space to ignore the state of the art to avoid the possibility of huge fines for willful infringement.
The fact that companies have these policies is one of the clearest bits of evidence that the patent system has become little more than an elaborate and expensive game of “gotcha.” If the patent system were working the way it’s supposed to, companies would be encouraging employees to keep tabs on the patents in their field to make sure they don’t infringe any of them. However, companies appear to believe that it’s virtually impossible to avoid infringing patents, probably because there are so many of them and they tend to be so vague. So instead, companies just assume they’re going to infringe and put in place policies that will minimize their legal exposure.
I’m at a loss to see how this system is benefitting anyone other than patent lawyers. The standard theory is that patents promote the spread of new inventions by giving inventors the confidence they can disclose their inventions without having them ripped off. But if companies are forbidding their employees from looking at the patents being disclosed, it’s awfully hard to see how that theory could be right.
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