Premature Patent Expiration for Lack of Usefulness
the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.Submitting working physical instantiations of inventions is largely impractical today, and so "usefulness" has become a subjective criteria, determined by a lone patent examiner on a case-by-case basis. It has been argued that this subjectivity has greatly contributed to the decline of patent quality, with many patents granted each year for 'inventions' that don't yet exist in the real world, filed by 'paper inventors' who have no intention of ever actually creating their "inventions," but rather lie in wait to sue anyone who independently arrives at the same idea and tries to sell some product based on it. Such patents have become the main fuel source for litigation instigated by patent trolls.
Reinstituting the requirement to submit a working instantiation is impractical. But there is a fix for all this: Automatic, premature expiration of patents that don't, within some fixed timeframe, have either 1) a corresponding product in the market place or 2) a licensee.
Under such a reform, the inventor could produce the invention himself, or pitch it to industries that might be interested in manufacturing it themselves. The additional hurdle to the inventor is not great; at worst, he would need to build one working copy of his invention and put it on his own website or eBay (perhaps for a hefty price tag) within the fixed period.
How does this reform increase patent quality and limit abuses by patent trolls? Classic patent trolls file applications with broad claims in anticipation of directions in which an industry might one day move, never working out the details of how exactly their 'invention' could be implemented. They then lay in wait for someone to create an innovation that looks like it might overlap with their claims, and file or threaten lawsuits. By forcing "paper inventors" to either create and market instances of their inventions or licensing them to third parties that will, the incentive to carve out huge land-grabs in the IP-space are greatly reduced. This class of inventors could still be wildly successful, but their success would hinge on the marketplace assigning appropriate value to their inventions.
Making the patented material prove itself in the marketplace removes the patent examiner's subjectivity and replaces it with the objectivity of the free market. 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.
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