Criminalise patent infringement?

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.

Comments 1

  1. This trend has arisen from commercial forces at work in our free market economies. Corporations have the ear of governments, and large corporations disproportionately influence the legislative process.

    During the cold war with the Soviet Union, Western governments had enough on their hands dealing with the military and diplomatic balance of power. They knew that putting intellectual property on steroids would only weaken their hand at negotiations for normalising intellectual property relations between East and West. So they tempered their legislation, so as not to appear like totally corrupt and Bourgois, laissez-faire capitalists, and lose the ideological argument with the African, South East Asian and South American client states.

    Now that the cold war is a fading memory, and the former Soviet republics and their client states are part of the capitalist club; now that generic drugs have been accepted as part of the legitimate development picture for developing nations like India and Brazil; the patent attorneys, lawyers and politicians need something else to keep them busy. There's basically nothing holding them back from this nonsense, because there's no big corporation asking them to stop the patent absurdity. There are just little guys here and there, long-haired prophets in the wilderness whose voices are being drowned out by the capitalist establishment. We have been fed the Western doctrine, that research and development are the finest products of high civilisation, and that intellectual property "theft" (or whatever is being framed as such) is something that uncivilised nations do, something that is holding back the whole world… That intellectual property law needs to be "strengthened" ad infinitim, until intellectual property infringement stops altogether (which will spur our economy on to greater heights, because infringement was always the problem).

    At least, this is my personal understanding of why we've seen a sudden up-tick in the activities of militant intellectual property legislators + litigators, since the early 1990's.

    We definitely need intellectual property law; but criminalising patent infringement is not the answer. I think the real answer for holders of genuine patents is to purchase insurance to cover the legal contingencies of defending their inventions. Alternatively, governments might consider providing legal aid through chambers of commerce, to legitimate small inventors and innovative start-up companies; where fighting such cases is deemed to be in the national interest (such aid might even be organised to pay for itself, and to act as an investment trust).

    Criminalising accidental infringement? No thanks. Criminalising a person who steps on a mine, within a minefield that has been deliberately designed so that it covers all the available land and so that nobody can move inside its perimeter without stepping on a mine? Madness.

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