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Saturday, November 20, 2004

Patently Ridiculous



The patent system in the US, and increasingly elsewhere, is, to say the least, out of hand. But rather than rant on about all the ways it is severely impeding technological and economic progress--which I'm sure has been in spades elsewhere--I'm just going to spell out the changes I would make.

First and foremost, in order to be granted a patent, you should need to demonstrate one of two things:

These are two different principles upon which the need for patents is defended, and as such warrant separate treatment, and probably separate classes of patents.

Addressing the first:

The odds of anyone else coming up with the same solution, without first reading your patent or associated publications, within the time period the patent is to cover, is effectively zero.

This is a more stringent and rigorous analogue of the "non-obvious" clause in the current patent system. The point of it is simply: it is reasonable (in the sense of being non-harmful) to discourage the copying of someone else's unique design, provided under no likely circumstances does it prevent anyone from using their own design. This in some sense would bring patents closer in nature to copyrights--truly governing only that which would not have come into existence (within the designated approximate time period) if not for the efforts of the specific author or inventor. I will get to the practicalities of implementing this interpretation in a moment.

Addressing the second:

The necessary cost of establishing the technology is sufficiently high as to warrant patent coverage for the specified period.

Personally, I believe this option would still do more harm than good, but I see it as a necessary concession since, quite simply, very few people would agree with me. It applies mostly to cases like drug design and applications, where the law is such that in order to sell a drug for a particular use, you have to spend vast sums of money on studies showing that it works and is safe. It may also apply to some hardware-intensive research where a great deal of costly trial and error is demonstrably the only way to solve something. But under no circumstances would it apply to anything that could reasonably be produced in a garage on a limited budget (remember there is the first class of patents for that). In particular, that some company did spend huge amounts of money developing some technology is irrelevant unless they can reasonably show the result could be obtained no other way (i.e., while the brute-force approach is always possible, its use does not prove it necessary).

Implementation:

These matters and definitions need to be taken seriously, and investigated with diligence and in depth--by orders of magnitude more than current practice. This, however, implies a great deal of expense per each patent granted, which, if passed on to the filer, simply limits patent coverage to well-funded, large corporations. My solution to this is fairly simple:

Filing a patent should be essentially free (a token charge of, say, $20, would be appropriate to prevent spamming of the patent database), but should not inherently confer any rights other than to serve as a public record of the content and the date of filing. But in order to activate a patent, you need to pay a series of fees adequately covering the costs of each stage of research and judgment by the patent office. (The point of having it in stages is simply to cut the cost of an early rejection.) Effectively, this would involve all of the diligence of a court case disputing the patent, except that the patent office itself would appoint a lead prosecutor who's job it was to discredit the patent if at all possible. Anyone wishing to contest the patent could participate at this stage if they wished, submitting testimony, etc. The point of this phase is to grant only with the highest diligence and reluctance the right to sue.

There would be no time limit for activating a patent, but the patent itself, when activated, would cover from the date of original filing for the period deemed reasonable for the patent. I.e., there would be no point in activating a four year patent five years after the initial filing.

Once the patent is activated, the patent holder may initiate law suits against anyone who can reasonably be seen as infringing on the patent. This would progress just as it does now, with no bias given to any lack of contest during the initial activation process. That is, there should be no specific legal benefit to contesting a patent while it is initially being activated vs. waiting until you get sued--the former is simply an extra opportunity to nip it in the bud before additional legal expenses mount on both sides.

The point of this arrangement is that it makes the patent system equally available to all, since even a pauper could make the initial filing and then seek backing on the basis of this filing to actually activate the patent. Further, the mere prospect of the patent being activated could suffice in any case where the patent-worthiness of the idea is clear, such that the simple $20 filing could confer as much de-facto protection as a full-blown investigated, activated patent. And if an inventor cannot secure funding to activate the patent, and then someone copies the idea to great profit, the inventor should then have no trouble securing funding--provided the idea is truly patent-worthy (and, ergo, that it was truly copied as opposed to independently invented)--since there is now a clear revenue stream to be gained through patent proceedings.

Discussion

Patent pundits come in many flavors, ranging from those who believe patents are just a bad idea all the way around to those who think the space of ideas should be carved up into legally monopolized properties as finely as coastal urban property. Unfortunately, the latter tend to be salesmen and lawyers, who are in the best position to influence policy. While I believe it could be shown with some rigor that in the long-term these strong patent proponents are shooting themselves in the foot with the same bullet with which they're shooting many other people in the head, salesmen and lawyers are not known for their concern over long-term consequences so this line of demonstration is largely moot.

Nor will my proposals above satisfy the goals of those who believe that the first person to the patent office with an idea should own that idea without regard to whether the competition would have been there a day later. There are a surprising number of "free market" advocates who promote this approach to patents--due, I think, to an ill-crafted analogy between physical and intellectual property.

The question remains: how many people in principle advocate patents as at most a monopoly granted to an idea truly unique to the inventor within the covered period? If there are enough with this view to matter, I hope the ideas above can help nudge them an increment closer toward being a coherent group that can challenge the current highly destructive system.

The progress of our technology, economy, and ultimately standard of living rests entirely upon the margin between what we produce and what we consume. Legal fees are an expense, not a product, so this steady shift toward a litigious patent environment is a double-whammy against progress. Unfortunately, I see no reversal in sight, and this makes me very very sad. As a technologist, as an inventor, it makes me want to quit the business and take up sheep farming (or any other endeavor that can be pursued indefinitely under a safety net of centuries of "prior art").

If you have a more optimistic view on the topic, or other ideas for solutions, speak up.

And for the record, personally I would like to see patents eliminated entirely (I can readily see ample alternative solutions to the various issues which the pro-patent pundits proclaim), but I would rather see a workable compromise than for things to continue even remotely in the vicinity of where they are and are headed now.

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Simon Funk / simonfunk@gmail.com