There are days when I wake up in an excellent mood, but a piece of writing manages to sour it somehow. I do not know where to begin with this call for patent reform from “a major British inventor”. Mr Trevor Baylis, inventor of the wind-up radio (no, I’m not winding you up, thank you, I’ll be here all week), has used his fame as an eccentric and successful British inventor to call for the criminalisation of patent infringement. He comments:
“If I was to nick your car, which is worth £10,000, say, I could go to jail,but if I were to knick your patent, which is worth a million pounds, you’d have to sue me. And if I was a colossal company, or indeed another country, that had stolen your invention, how could you find a million pounds a day to take me to court?”
There are several things wrong with this statement. One of my pet-peeves is precisely this mindless tendency to equate physical theft with infringement of intellectual property. Everyone who has ever studied IP will have encountered this argument, and the answer is that ideas are non-rivalrous. If I steal someone’s car, he cannot use it, if someone “steals” Mr Baylis’ ideas, he can still use them. These concepts therefore require an entirely different type of enforcement.
To criminalise patent law would also have undesired consequences. Patents are awarded after an application process when the inventor can demonstrate that they have come up with a novel idea worthy of exclusive protection. Too often, there are patent applications for ideas that are not that novel, or in areas that are researched by several people at once. Just because someone managed to obtain patent protection before everyone else does not immediately turn every competitor into a thief.
And of course there is the issue of the viability of enforcing patent infringement criminally. We are well familiar with many stories where patent law has been applied unfairly, to reward patent abuse with criminal enforcement power would be disproportionate and unworkable.
I am a bit cynical, but I wonder if all of this talk about copyright piracy and patent infringement in the news recently is the result of an orchestrated campaign of IP maximalism. We seem to be on the upswing of protection once more after some years of relaxation, and the emerging picture, at least in the UK, is not pretty. If Lord Mandelson is behind this, we should be wary indeed.