The Patent Game: Experiments in the Cathedral of Law

Google Tech Talk
August 16, 2010

ABSTRACT

Presented by Andrew W. Torrance.

The study of law has traditionally focused on close scrutiny of judicial decisions, statutes, regulations, and scholarly articles. We offer an alternative approach: experimental law. The Patent Game is an interactive web application, built using Ruby on Rails®, designed to be a simplified model of the patent system. Using The Patent Game, one may experimentally explore how patent systems work. Groups of human players can compete or collaborate with one another to come up with valuable new inventions, and then patent, make, sell, license, and buy these inventions. Patent owners may even litigate against patent infringers. By programmatically controlling various parameters of patent law, The Patent Game enables rigorous experiments into the impacts of those parameters on both choices human players make and various metrics of patent system performance. We have conducted several experimental studies so far, sometimes with surprising results. Data from our first study suggest that a commons offering no patent protection may generate more innovation, productivity, and wealth than a patent system. Our latest study, completed in July 2010, suggests that a patent system in which infringement results in monetary damages (a "liability rule") may generate more innovation, productivity, and wealth than a patent system in which infringement results in an injunction (a "property rule"). Although The Patent Game is simplified compared to actual patent systems, it may point toward a potential future in which the choice of legal rules and processes are more strongly based on an experimental and scientific understanding of the forces at work in the law.

Andrew W. Torrance joined the University of Kansas School of Law faculty in 2005. In 2009, he was named a Docking Faculty Scholar at KU, and a 2009/2010 Fellow in Law, Innovation, and Growth at the Searle Center at Northwestern Law School. Torrance received his Ph.D. in biology from Harvard University in 1997 and is a 2000 graduate of Harvard Law School. He earned his Bachelor of Science from Queen's University in Canada. In 2003, Torrance was named the Hrdy Visiting Professor of Conservation Biology at Harvard University, and taught Biodiversity: Science, Policy, and Law at Harvard University from 1999 until his arrival at KU. Torrance practiced biotechnology patent law at Fish and Richardson LLC, and then served as inhouse patent counsel at Inverness Medical Innovations.

Torrance has presented his research in the United States, Canada, Finland, Scotland, England, France (at the Organisation for Economic Cooperation and Development), and Germany. His articles have been published in journals such as the Berkeley Technology Law Journal, the Columbia Science and Technology Law Review, and the Minnesota Journal of Law, Science & Technology. Since 2007, Torrance has run Biolaw: Law at the Frontiers of Biology, an annual conference that gathers leading scholars at KU Law to present their insights on the latest developments in biolaw. Torrance's research interests include intellectual property, patent law, innovation law, biotechnology, biolaw, food and drug law, biodiversity law, climate change law, and international environmental law.

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[NakedUndone]

(continued from below) To patent them or otherwise protect such basic ideas would be a great boon to whoever owns the rights, but it would be disaster to the rest of us who would now have to invent many alternatives, most of which would be inferior...

[NakedUndone]

The argument of the "tragedy of the commons" when applied to intellectual property seems flawed to begin with. It's not like you can use up an idea in the same way you can use up a pasture or a fishing straight. I've applied calculus and linear algebra innumerable times to innumerable problems and they show no signs of wearing out. The reason we learn these techniques is because they are so broadly applicable.

[NakedUndone]

One issue that's not addressed is, by how much more do the winners win in a strong patent system versus a commons system? This seems to be the main value of a patent system: not that it encourages innovation (quite the contrary, as he's shown), but rather that it keeps the spoils of that innovation in the hands of the rich, even though they may not even have originated it.

[zbigniewzapora]

Google Stephan Kinsella "Against Intellectual Property"

[paranoiadmin]

I love that this ends with copyrights! :D

[Nikola Jevtic]

It is unclear from the talk, but it seems they did not model the tragedy of the commons at all. does the value of goods drop sharply if they are produced by more entities? Even if it does, the next issue with the model is how easy it is to find unexplored inventions. in real world it takes time and resources to find out the value of an invention, and all actors are very likely to come up with the same inventions in a similar order, due to dependencies. similar to civ tech tree.

[zassounotsukushi]

This is great material, it's awesome to hear that someone has actually done experiments to substantiate claims regarding efficacy of patents. But I need more answers.

Why does the speaker talk about using future work to optimize how we use patents when present results show a clear B.V. solution - THEY DON'T WORK?

How can I take any conclusion from this talk other than vindication that intellectual "property" is simply exercising of tyrannical powers to keep connected interests in place?