Reward or Punish? Nice IP Litigators Finish First
Apparently I was in a coma in March of this year when "the press went crazy for Martin A. Nowak’s study on the value of punishment." As Scientific American recently reminded us
A Harvard University mathematician and biologist, Nowak had signed up some 100 students to play a computer game in which they used dimes to punish and reward one another. The popular belief was that costly punishment would promote cooperation between two equals, but Nowak and his colleagues proved the theory wrong. Instead they found that punishment often triggers a spiral of retaliation, making it detrimental and destructive rather than beneficial. Far from gaining, people who punish tend to escalate conflict, worsen their fortunes and eventually lose out. “Nice guys finish first,” headlines cheered.
See Using Math to Explain How Life on Earth Began here.
What does this have to to with IP ADR? Plenty!
When negotiating the settlement of an IP dispute, framing your proposals as rewards rather than threatening further punitive litigation strategies and tactics will make the other guy far more likely to engage in collaborative problem solving and your client far more likely to praise your extraordinary litigation skills.
Special note to mediators and settlement judges: this should put the last nail in the coffin of the "litigation is risky and expensive" settlement strategy.
1. The reference to the application of game theory in evolutionary contexts, in the SCIAM article, betrays a misunderstanding. Evolutionary game theory works with dumb agents who typically cannot reason. The theory then shows how a set of rules or conventions can arise as an optimal solution -even though the agents are dumb.
2. The experiment, while interesting, appears to have embedded into a description -punishment/reward- which informs the players as to the point of the game.
3. My guess is that IP negotiation, like franchise mediation, runs into the problem of legal risk versus business risk.
The attorney who cannot bargain in the shadow of the law will be unable to reason collaboratively very effectively.
1. Is there something between a "dumb agent" and the hypothetically "reasonable" economic actor?
2. I find reasoning ONLY in light of the law (or, as you say, in its shadow) limits the parties' settlement opportunities as it ignores their enlightened self-interest, preferences, motivations, needs, desires, etc., many of which don't figure in the Q whether the party is more or less likely to "win" the legal claim.