You probably never heard of Michael Servetus. That’s fine because he was a heretic and was
burned at the stake atop a pile of his own books – and green wood – under the
orders of John Calvin on October 27, 1553.
And thank god for that. Because
if you describe yourself as a “Christian” today, Calvin’s accommodation of
Catholic dogma kept doctrinal coherence to the “faith” that silly Michael
sought to hold accountable to its own
sacred texts. The notion that the statement
in John 1:14 – “…the Word was made flesh,
and dwelt among us…” implied that Jesus came from God and was therefore not a temporal co-equal in the illusion
of the Trinity was so dangerous that the thinker
had to be executed. Never mind the
fact he was the first physician to correctly understand the role of the heart,
blood and lungs in keeping the human body alive. Forget his contribution to astronomy by
calculating the occultation of Mars by the Moon. He questioned a 1,200-year-old dogmatic illusion. He must die!
Newton to Aristotle and Descartes; Galileo to Pope Urban
VIII; Copernicus to Ptolemy; Alexander Winton to horses and carriages; what
is it about “belief” that is dependent on extermination of observation? It’s one thing to hold oppositional
perspective. Two observers of the same
fact, pattern, occurrence or phenomenon may process the “same” observation
differently. This interaction can enrich
knowledge by the plurality of perspective.
That is in stark contrast to observation held in opposition to
unquestioned (or unquestionable) dogma, consensus inertia, or “belief”. Far from enriching knowledge, this begets an
existential crisis and provokes the impulse to exterminate the heretic.
An editorial note: these observations are just that – observations. I don’t make them because “I’m right”. I make them because they’re a perspective I
have.
Over the past 25 years, I’ve been immersed in the world of
intellectual property while living here in Charlottesville Virginia – home of
Thomas Jefferson. In his letter in 1813
to Isaac McPherson, Jefferson famously wrote of the patent system…:
“Inventions then cannot, in nature,
be a subject of property. Society may give an exclusive right to the profits
arising from them, as an encouragement to men to pursue ideas which may produce
utility, but this may or may not be done, according to the will and convenience
of the society, without claim or complaint from anybody.”
The pursuit of “ideas which may produce utility” was a laudable
aspiration. But Jefferson never imagined
a world in which German patent reparations taken by the U.S. at the end of
World War II under Operation Paperclip would be used in the Cold War in areas ranging
from rockets and missiles, to industrial chemicals, to medicine, to physics and
mathematics. He never imagined “Jack”
Mullin would reverse engineer and appropriate (steal) the ferromagnetic tape (invented
by Danish engineer Valdemar Poulsen in 1898 and perfected by the Third Reich in
the late 1920s) upon which the digital revolution would be born. And he certainly never imagined the collusion
that President Ronald Reagan would enable – under the direction of Gerald
Mossinghoff – between the patent granting process and industries desperate to obtain
more patents faster to counter the growing innovation “threat” from Japan. Collusion is a strong word but let’s examine
the facts. To lubricate the fabrication
of faux “invention”, Congress authorized the United States Patent and Trademark
Office to levy “user fees” which the Office would retain if it reduced the
pendency of patents and increased its issuance of claims of invention. And he certainly would have been appalled by
1985 President’s Commission On Industrial Competitiveness which suggested that
Cold War deterrent by patent number (as opposed to quality) would be the
solution to a growing competition from Asia.
Into Reagan’s world came the ecclesiastical council of Bronwyn
Hall, Adam Jaffe, and Manuel Trajtenberg working sub rosa with the National Bureau of Economic Research (NBER). While their work was far from a secret, their
bias was. Drawing data from patents issued
between 1963 to 1999, they would become to innovation econometrics what Luther
and Calvin were to the Reformation. And it’s
their opening assumptions that are both false and the basis for generalized
error.
They recite that: 1) patents contain detailed information about “the
innovation itself”; 2) they are sought for a monopoly incentive; and, 3)
citations are a proxy for acclaim or “importance”. Referencing the 1981 NBER work of Jerry
Hausman, Bronwyn Hall and Zvi Griliches (though ignoring the uncomfortable weak
correlations between research and development and patenting activity that they
reported), these researchers instituted an econometric doctrine of “counting” patents
as an indicator of inventive or innovative effort. From that time until the present,
academicians and economists have been blinded to the numeric glaucoma of the
1950s (did the U.S. or the U.S.S.R. have more Germans?) that begot the
qualitative blindness rendered complete in 1981 (can we build a database to
justify our desire to “out-invent” Japan by patent numbers?).
For a moment, consider the published work of Deepak Somaya from
the University of Illinois. In his 2012
paper in the Journal of Management entitled “Patent Strategy and Management: An Integrative Review and Research
Agenda”, he describes the motivations for patenting far afield from
Jefferson’s market compromise. And while
the mountain of evidence at the Court of Appeals for the Federal Circuit and
the Patent Trial Appeals Board continues to grow showing that granted patents
are more often than not found to be in error when challenged, neither
academicians nor economists are willing to consider that the artifact of a
patent does not represent “invention” or “innovation”.
“The motivations of
firms in obtaining patents provide considerable insight into the potential
strategic uses of patents. Among the many reasons for patenting described in
prior work are blocking (defensive and offensive), preventing copying, building
fences and thickets, earning licensing income, avoiding litigation by others,
use in negotiation and exchange, motivating and rewarding R&D personnel, measuring
performance, attracting investors, and building image and reputation (Blind,
Edler, Frietsch, & Schmoch, 2006; Blind et al., 2009; Cohen et al., 2000;
Cohen, Goto, Nagata, Nelson, & Walsh, 2002; Duguet & Kabla, 1998).
Research has also shown that different firm-level strategic motives predict
characteristics of the firm’s patents as well as reactions from rival firms to
these patents (e.g., filing oppositions) (Blind et al., 2009).”
Where is the consideration of patents representing laborious
inquiry, genius, and invention?
Tragically, nowhere to be found! So
much for assumptions 1 & 2 of the catechism. Not surprisingly, the third assumption that
suggests that “citation” means you’ve been celebrated for your contribution is
an error of academicians who seek tenure rather than reading patent law. In the ivory towers of academic research,
citation means someone recognizes you.
In contrast, in the world of patents, citation means that you are rendered
irrelevant or surpassed by the “state-of-the-art”. Each citation removes an option by a
determination of “patentable distinction”.
The more cited a patent is, the more its range of market control options
are limited! This isn’t tenure, it’s competitive market
restriction! It is worth noting that, in
academic research, being cited doesn’t necessarily mean you’re being
celebrated. Good research includes the
challenging of previous work. But don’t
tell citation counters that unfortunate detail.
To be found – in their univariate world – is to be celebrated. Not true in science; definitely not the case
in patents.
And herein lies the problem.
To get funded research in the field of econometrics around innovation,
one seems to be compelled to turn a blind eye towards the dubious selective
relevance of NBER data; the fallacious conclusions drawn from the work of
researchers who themselves didn’t check their assumptions; and, rationalize
data to ignore the ground truth that, since 1981, patenting has been more about
the mutual assured destruction doctrine built on missile silos of expensive
litigation and costs of enforcement rather than on genuine innovation. No wonder that Apple and Samsung were
fighting over who “invented” the rectangle and who controls the movement of
fingers across a screen. Ah, poor Thomas
Jefferson!
Around 80 AD, the Roman poet Martial may have coined the
term “plagiarius” to describe the seduction and expropriation of things. In the 17th century, the term
became more explicitly part of literary parlance. And in 1993, IBM started developing machine
intelligence to detect plagiarism in text and code. Not surprisingly, the cunning use of thesaurus
and word substitution became inextricably part and parcel of patent filers in
the 1980s. The more convoluted the term “could”
be, the more interpretation might be afforded to what wasn’t actually
invented. The courts concluded that a
patent applicant could be “their own lexicographer” meaning that “meaning” didn’t
“mean” what it “meant”. Against that
backdrop – to say nothing of the profit motives for granting and maintaining a
plethora of “strategic” patents in the US, Europe and Asia – is it any wonder
that we’re awash in patents? Let’s see:
if a printer was paid to print counterfeit $20 bills, might he print many? So too, a patent office paid to issue and
receive maintenance fees for the preservation of prolific (and dubious) patents
may have an incentive to, that’s right, issue patents. Precisely what they’ve been doing for four
decades.
But are we prepared to measure quality rather than quantity? Well so far, no. While industry left the Constitutional intent
of patenting activity nearly 40 years ago by turning patents into competitive
deterrents rather than celebrations of ground-breaking invention, compliant
researchers found the existence of a data artifact in the form of patents to be
the only thing that was countable so, guess what, they counted them. In 2001, when I first applied machine
intelligence to the question of plagiarism in patents and reported in
Congressional testimony that up to 1/3 were possibly at risk of being merely
the product of thesaurus linguistics, did anyone take notice? When Commerce Secretary Donald Evans began
the drumbeat of Chinese IP theft while ignoring the rampant domestic evidence
of innovation expropriation among competitors and within institutions (HP v
Compaq; DuPont v Monsanto; Columbia University and its transgenic mouse; etc),
did anyone ask if China was merely taking to scale abuses that were alive, well,
and celebrated in the U.S. and Europe? Are
any market participants aware of the looming threat of machine intelligence applied
to patents? Not really. And why?
For the simple reason that we’re still blindly reciting a counting game
while the rest of the world calls the U.S. and European bluff. Oh, and for the record, the Chinese aren’t “inventing”
much. They’re largely building jurisdictional
thickets around the hedges that G-20 countries manicured for years.
In 2013, M·CAM started running an equity fund that measured
the difference between companies that come up with new ideas and companies that
merely expropriate the ideas of others. We
did this to prove the consequence of measuring what others ignored. In 2015, that effort gave rise to the
creation of the CNBC IQ100 powered by M·CAM. During its publication period, the index
out-performed the S&P500 around which it was inspired. Now, we publish three indexes – Innovation a® United States (formerly the CNBC
IQ100), Innovation a® Global,
and the Martin Global Innovation Equity Trade War. These indexes are based on a very simple premise:
if one genuinely contributes to ideas
that build market opportunities, it is reasonable to expect that entity to ultimately
perform better than those who merely copy the work of others. And, as long as the Cold War mentality of
patent counting prevails, I suspect our performance will be rewarded. After all, if the smartest people in the room
aren’t willing to ask the tough questions on the quality of that which they
count, does counting count?
Which brings me back to the charred remains of our
heretic. Tragically, Michael asked the “wrong”
question. If the sacred text says, “In
the beginning,” he puzzled, “doesn’t that mean ‘beginning’”? And if in the beginning was the Word, and
then the Word was made flesh, doesn’t that imply sequence? And if there’s sequence, doesn’t that mean
that the flesh and blood came after the Origin?
Alternatively, is the text misreporting the facts? Servetus wasn’t demanding his position. He was just saying that you can’t hold
literal infallibility of text and the doctrine of the Trinity with
credibility. Pick a story. Stick with it. A great surge of our innovation policy was
born of the Cold War. Numeric deterrents
mattered. I don’t mind if we, as a
society, decide to redefine patents from being temporary market incentives for
genuine contributions to science and the useful arts (sorry for quoting the
Constitution there) to being mine-fields of deterrents to disrupt those who would
challenge incumbencies. All I care about
is that we pick a story and stick with it.
When the consensus illusion stands in the way of explicit observations,
I’ve got a problem. And with the
emergence of “trade wars” justified by IP theft, there’s a lot burning at stake. (Yes, I couldn’t miss the pun. I’d say “I’m sorry” but I’d have to be my own
lexicographer because I wouldn’t really mean “sorry”.)
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Thank you for your comment. I look forward to considering this in the expanding dialogue. Dave