China's Entry into Intellectual Monopoly

NPR has been covering the emerging strength of the Chinese marketplace, with an article yesterday on the growing Chinese software outsourcing industry and today an interview with Mark Cohen, U.S. Attache to China on intellectual property. Mr. Cohen believes that China needs to bolster their patent law.

So, I thought it would be nice give China some suggestions as they think about how to shape their policy, suggestions gleaned from mistakes we have and are making with our system.

So here it is, China, a laundry list of possible patent system innovations that you can try out that will not only help you catch up with the U.S. in matters of innovation, but even surpass it:

• Allow the Independent Invention Defense


• Limit the length of patent monopoly grants. 20 years is far too long for many classes of patents.


• Limit Patent Trolls: Revoke patents that don't have either a licensee or a product on the market within three years of issuance. The USPTO once required that a working instance of the described invention be submitted with the application. These submittals helped the examiner determine usefulness (even today, if a patent can't function as described, the patent is invalid). This practice was abandoned out of practicality. Requiring that the inventor demonstrate usefulness in the marketplace gets us back to actually inventing things and rewarding that, instead of rewarding the act of dreaming up ideas and submitting paperwork to the USPTO


• Implement a better test for non-obviousness


• Open up the patent review process to all interested parties; allow reviewers to accept input on prior art and obviousness from actual experts in the field. This isn't to say that patent examiners are slouches, simply that the task of determining obviousness and knowing about all possibly-related prior art should be in the hands of more than one expert, especially if that one expert is overworked, undercompensated, and chained to their patent office desk for the majority of their waking life.


• Make it free to file a Statutory Invention Registration (SIR), which provides an inventor with the protection of public record of the invention, but waives all monopoly (patent) rights to the invention. Publishing the details of an invention in an academic journal has much the same effect, but submitting an SIR helps the patent office find prior art much more effectively (prior art unknown to examiners being one of the main problems with the current system). SIRs are woefully under-utilized in the US system, both because they are still expensive to obtain, and because they are little-known (try and find some info about them on the USPTO's webpage, I dare you). Since this is largely a service to help the USPTO, why do they charge us for it?


• Others?

This is just a start. If you have other ideas, post them in the comments and I'll add some of the best to this list. I'd like to eventually put these together as a series of letter-writing suggestions for you to send to your senators and representatives.