Patents, as one of the few quantifiable outputs of research, are increasingly being used as an indicator of the less quantifiable—innovation, and the competitiveness that is assumed to spring from innovation—on the grounds that these, too, are outputs of research. The part that patents actually play in innovation has become confused with their representational role. This article steps back from the confusion of what patents do and what patents indicate being done, to examine the nexus itself. In good patent tradition, this can be achieved by means of an indicator—the patent attorney. Increased involvement of the patent attorney in innovation would seem to be a reasonable measure of the intensification of the patent-innovation nexus. On the implications of this intensification, the article merely speculates, though with some consternation. How can the logic of the patent system sustain the argument that information is protected so that it can be disclosed when increased incentive to protect is in conflict with the incentive to disclose? What role is there for creativity and serendipity in an innovation process that is legalistic and litigious? It is even worth considering what value patents retain as indicators when growing acceptance of their association with innovation gives them a value in their own right. Indeed, this value may sometimes be so great that innovation itself is rendered irrelevant.
A Bill to Amend Part I of Title 35, United States Code, to Provide for the Protection of Inventors Contracting for Invention Development Services House of Representatives 2419, 28 September 1995.
Advertisement by patent attorney, Inventors’ Digest, November-December 1995, p. 45.
For example, Watchdog programme, broadcast BBC 1, 12 December 1994, BBC transcript 1 LFE E165S; ‘ISC-their side of the story’, Inventors World, 3, 1995, pp. 38–41.
Michael Kirk, ‘Testimony of Deputy Commissioner’, Patent & Trademark Office Society, October 1994, pp. 731–740.
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League for Programming Freedom as quoted in Brett Glass, ‘Patently unfair?’, Infoworld, 12, 44, 1990, p. 62.
Seth Shulman, ‘Patent medicine’, Technology Review, 98, 8, 1995, pp. 28–36.
Alexander E. Silverman, ‘Intellectual property law and the venture capital process’, High Technology Law Journal, 5, 1, 1990, pp. 157–192.
Nancy Perry, ‘The surprising new power of patents’, Fortune, 23 June 1986, pp. 73–83.
See Kerry Schott, Industrial Innovation in the United Kingdom, Canada and the United States, British North American Committee, London, 1981.
Gerald Udell, ‘It's still caveat, inventor’, Journal of Product Innovation Management, 7, 1990, pp. 230–243.
Brett Glass, ‘Patently unfair?’, Infoworld, 12, 44, 1990, pp. 56–62.
David Teece, ‘Profiting from technological innovation: implications for integration, collaboration, licensing and public policy’, Research Policy, 15, 1986, pp. 285–305.
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W. Kingston (ed.), Direct Protection of Innovation, Kluwer Academic, Dordrecht, 1987.
A most excellent exception, wrought from a remarkable combination of legal and economic perspectives on patents and innovation, is Robert Merges, ‘Commercial success and patent standards: economic perspectives on innovation’, California Law Review, 76, 1988, pp. 805–876.
Merges, op. cit., Ref. 6.
Ibid.
Ibid., p. 876.
Michael Blackman, ‘Taking patent information services to small and medium enterprises’, Intellectual Property in Asia and the Pacific, 40, 1994, pp. 44–67, see p. 47.
Seth Shulman, ‘Patent medicine’, Technology Review, 98, 8, 1995, pp. 28–36.
Irwin Feller, ‘Universities as engines of R&D-based economic growth: they think they can’, Research Policy, 19, 1990, pp. 335–348.
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Ronald Rothchild, ‘Making patents work for small companies’, Harvard Business Review, July-August 1987, pp. 24–30.
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C. W. Olney, ‘The secret world of the industrial spy’, Business and Society Review, 64, 1988, pp. 28–32.
See, in particular, Eric von Hippel, The Sources of Innovation, Oxford University Press, New York, 1988.
Stephan Schrader, ‘Informal technology transfer between firms: cooperation through information trading’, Research Policy, 20, 1991, pp. 153–170.
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Donald Spero, ‘Patent protection or piracy—a CEO views Japan’, Harvard Business Review, September-October 1990, pp. 58–67.
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C.T. Taylor & Z.H. Silberston, The Economic Impact of the Patent System: A Study of the British Experience, Cambridge University Press, Cambridge, 1973, p. 231.
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Karen Howes, ‘The shield and the sword’, Satellite Communications, 17, 1, 1993, pp. 6A-9A, see p. 7A.
Don Lamberton, ‘Innovation and intellectual property’ in Mark Dodgson & Roy Rothwell (eds), The Handbook of Industrial Innovation, Elgar, Aldershot, 1994, pp. 301–309, see p. 307. See also ‘The harm of patents’, Economist, 22 August 1992, p. 15.
Alexander E. Silverman, ‘Intellectual property law and the venture capital process’, High Technology Law Journal, 5, 1, 1990, pp. 157–192, see footnote 62.
Geof Bowker, ‘What's in a patent?’ in W.E. Bijker & J. Law (eds), Shaping Technology—Building Society, Massachusetts Institute of Technology Press, Cambridge, 1992, pp. 53–74, see p. 61.
Brett Glass, ‘Modem users, fear not; it's just the sound of patent attorneys’, Infoworld, 14, 31, 1992, p. 81.
Ibid.
Brett Glass, ‘Patently unfair?’, Infoworld, 12, 44, 1990, pp. 56–62.
Laudeline Auriol and Francois Pham, ‘What pattern in patents?’ OECD Observer, 179, December 1992-January 1993, pp. 15–18.
Charles Moss & Ann Evans, ‘Protecting ideas and new products’, Industrial Management and Data Systems, September-October 1987, pp. 21–24.
Nancy Perry, ‘The surprising new power of patents’, Fortune, 23 June 1986, pp. 73–81, see p. 80.
Richard Gilbert & Carl Shapiro, ‘Optimal patent length and breadth’, Rand Journal of Economics, 21, 1, 1990, pp. 106–112, see p. 112.
J J. Eaton & D. Bawden, ‘What kind of resource is information?’, International Journal of Information Management, 11, 1991, pp. 156–165.
E. Sciberras, ‘Indicators of technical intensity and international competitiveness: a case for supplementing quantitative data with qualitative studies in research’, R&D Management, 16, 1, 1986, pp. 3–14.
Michael Mann & Patrick Canary, ‘Protecting innovation through patents’, Business and Economic Review, 39, 2, 1993, pp. 25–27.
For example, Daniele Archibugi, ‘The inter-industry distribution of technological capabilities. A case study in the application of the Italian patenting in the USA’, Technovation, 7, 1988, pp. 259–274.
‘Hidden agenda’, Economist, 20 November 1993, pp. 134–137.
J.D. Frame & F. Narin, ‘The United States, Japan and the changing technological balance’, Research Policy, 19, 1990, pp. 447–455.
Donald Spero, ‘Patent protection or piracy—a CEO views Japan’, Harvard Business Review, September-October 1990, pp. 58–67.
Giorgio Sirilli, ‘Patents and inventors: an empirical study’, Research Policy, 16, 1987, pp. 157–174.
For example, Pari Patel & Keith Pavitt, ‘A comparison of technological activities in West Germany and the United Kingdom’, National Westminster Bank Quarterly Review, May 1989, pp. 27–42.
Amram R. Shapiro, ‘Responding to the changing patent system’, Research Technology Management, 33, 5, 1990, pp. 38–43.
The Importance of Protecting your Idea, Litman Law Offices, Arlington, VA, n.d.