How Creativity Works, and How the Patent System Thinks it Works

Some notes from a brief interview on Radio National’s Future Tense.

Recently our national broadcaster hosted Edward Jung of Intellectual Ventures, a company that "has earned a special brand of hatred in the business world as the ultimate patent troll". IV have become infamous for perfecting the practice of buying up patents and demanding settlements while limiting their own exposure to countersuit by never making anything. 

This makes them a non-practicing patent-asserting entity (PAE), or "patent troll". A pejorative that was coined – in a special irony – by one of their own founders while working the other side of the courtroom for Intel.

Quoth the EFF:

Though it claims to promote innovation, Intellectual Ventures is behind some of the most outrageous troll campaigns in recent years. Famous for hiding behind thousands of shell companies, it spawned Lodsys, the troll that harassed small app developers, and the Oasis Research litigation featured in This American Life.

It struck me as unusual that the ABC didn't cover this most well-known aspect of IV's work, instead allowing Jung to frame himself as an expert on creativity and innovation, and to perpetuate some myths – both about how creativity really works, and also about how the patent system treats it. So this week they kindly allowed me to present a brief counterpoint:

Edward Jung described creativity as this process where there is a person sitting alone in a room and an idea comes to them and they send it out to the world. Now, that’s a very outmoded idea of creativity and it’s very odd, but it is a lot like the way the patent system sees creativity.

As other speakers on your show mentioned, creativity is actually a social process, it happens within and among people. Every idea is built upon the huge substructure of other ideas. As Newton said, he stood on the shoulders of giants. As do we all.

So there’s this social process going on, and when something is invented somewhere in the world it’s very likely that it is being simultaneously invented by other people.

[full transcript here - yes, on the wrong page and you must scroll down and hit TRANSCRIPT to reveal it] and [full episode audio here]

Intellectual property has a purpose. That purpose is clearest when you see it used to regulate commercial disputes between large and similarly armed conglomerates, and most self-evidently broken when deployed by powerful entitities against weaker ones. Patent trolls reveal a particular bug in the system – non-practicing entities are stronger because they have no attack surface. Today's products and services contain huge numbers of innovations within them, so if they put any of their patents into actual products then they could be counter-sued by other patent holders. This gives them an incentive to hoard, the very opposite of promoting "the Progress of Science and useful Arts".

The huge edifice of IP law hasn't stopped innovation. It has become so complex and interwoven with industry that I can't tell, today, if it is a net gain or a net loss. But one thing is sure: in practice it is deeply skewed towards some actors more than others, without strong correlation to their usefulness to society or to innovation. It could do with some radical unskewing.