Law vs. Culture in Intellectual Property
On Friday and Saturday I’ll be at a conference at GW Law School on “Patents and Entrepreneurship in Business and Information Technologies.” As I prelude to my talk there (about Bilski), I thought I’d write about an aspect of innovation policy that probably deserves more attention.
When people think about how to improve public education, the debate tends to break down along the lines of “money” vs. “values.” In other words. some people say that the problem with schools is that we don’t spend enough money on them or that the money that is spent is unequally distributed. The other view is children don’t work hard enough, parents are not involved in their children’s lives, or society emphasizes other values at the expense of education. Both of these criticisms have merit, and you cannot get successful education reform without responding to both.
When it comes to promoting innovation, though, lawyers focus almost entirely on the “money” side of the equation. We ask “How can we give firms better incentives to innovate?” The tools of choice involve strengthening IP rights, providing new IP rights, or reducing transaction costs to get these rights. Now obviously this is important, but I wonder whether the real bottleneck in innovation is now cultural. (Put another way, are we past the point of diminishing returns on IP rights?) Some firms are very innovative. Other firms are not. The car industry in the United States is derided as a haven for dinosaurs, while other industries are on the cutting edge. None of this is attributable to law. It involves things like corporate structure, leadership, and worker training. Business schools and management scholars are clearly interested in these questions, but I don’t think there is enough interdisciplinary dialogue between these folks and lawyers.
Here’s a simple example. The best free throw shooter in NBA history was Rick Barry. He shot free throws underhanded. How many NBA players shoot free throws underhanded today? None. Why? The only answer I can come up with is that players just think it looks goofy. A cultural norm is blocking the adoption of a superior technique. The problem is not a lack of creativity and would not be solved through new property rights. (To be fair, I don’t think that the NBA is particularly hostile to change — there are lots of counterexamples.) These issues need more scrutiny.