Defending Innovation: Intellectual Property in the 21st Century
Seeking Substantive Reform
Michael Meurer, professor of law and Michaels Faculty Research Scholar, has boiled down his recent research to one question: Do Patents Work? That's also the tentative title of his forthcoming book with coauthor James Bessen. The answer, Meurer believes, is no.
His research has led him to the conclusion that patents are flawed for several reasons. “They do not give a positive right to practice technology, just a negative right to stop it,” says Meurer. Nor do they work as property, he claims. The inability of patents to clearly provide notice to the world of property boundaries for new technology hinders the demarcation of strong property rights that would encourage investment. Meurer's findings show that in 1984 patents provided a subsidy to industry, but by 1999 the patents' net effect was to discourage innovation by the typical firm.
While economists and patent lawyers usually think that those who infringe on patents are pirates, Meurer has found that the typical defendant in a patent case actually has more R&D and patents than the typical plaintiff.
He is quick to point out that the negative effects of patents are not applicable to all companies. “Patents on old, obvious technology are not as big a problem as patents on new and non-obvious technology,” he says. The pharmaceutical industry, for instance, benefits from the current patent system. Meurer explains, “Pharmaceutical companies invent products that can be clearly defined and patented more effectively than the products of information technology firms, such as Cisco, IBM, Microsoft, and Intel.”
Meurer's empirical research is the first to provide a comprehensive accounting of the impact of patents as well as what he calls the “fuzzy boundary problem.” While economists and patent lawyers usually think that those who infringe on patents are pirates, Meurer has found that the typical defendant in a patent case actually has more R&D and patents than the typical plaintiff. And often the defendant and plaintiff are not very close in terms of industry and technology, which suggests that firms are not always able to determine all the parties with whom they need to negotiate in order to obtain the necessary licenses. Meurer places the blame in part on the specialized appeals court created by Congress 25 years ago, which expanded patents to include software and business methods.
When discussing his findings, he expresses a sentiment echoed by other scholars at Boston University working on intellectual property: “I'm glad that people feel a desire to reform.”
For more information, see www.bu.edu/law/faculty/profiles/bios/full-time/meurer_m.html.
