IEEE: We Want a New Type of Patent
The IEEE Spectrum (Institute of Electrical and Electronics Engineers) is running an interesting patent reform article written by Lee A. Hollaar, a professor in the School of Computing at the University of Utah, where he teaches networking and computer and intellectual property law. Hollaar is also a registered patent agent and is the former chair of IEEE-USA's Intellectual Property Committee.
Hollaar proposes a new type of patent to address three problems with the patent system for the fast-moving high-tech industry: 1) it takes too long to get a patent, 2) patent terms of 20-years are often excessive for technologies that are replaced in a matter of a few short years, and 3) patent quality is harmed by insufficient prior art searches.
The new "limited patent" would grant protection from the moment the technology is first used in commerce, would last 4 years from that date, and instead of requiring non-obviousness, would require simply that the product be 'novel.' The novelty requirement would not be determined -- the limited patent would be granted as long as the paperwork was in order. Novelty could be challenged at any point by someone submitting prior art and paying a small fee. The limited patent would thus lose the presumption of validity, but give the inventor some protection while either pursuing a full patent or filing new limited patents on further innovations. The proposed limited patent would also allow a form of the independent invention defense, allowing those parties that could prove they had implemented some of the claims prior to grant of the limited patent the right to continue (but still excluding all others from practicing those claims).
Fees for limited patents would be significantly less than for a full patent application, since they dispense with examination and require very little work from the patent office. Limited patents help improve the traditional examination process by helping to build the prior art database.
The best part about this proposed reform is that it doesn't directly disrupt those who favor keeping the current system as-is; an inventor would be free to choose which type of protection they wanted to apply for, applying for either a traditional patent or a limited patent.
Related:
Hollaar proposes a new type of patent to address three problems with the patent system for the fast-moving high-tech industry: 1) it takes too long to get a patent, 2) patent terms of 20-years are often excessive for technologies that are replaced in a matter of a few short years, and 3) patent quality is harmed by insufficient prior art searches.
The new "limited patent" would grant protection from the moment the technology is first used in commerce, would last 4 years from that date, and instead of requiring non-obviousness, would require simply that the product be 'novel.' The novelty requirement would not be determined -- the limited patent would be granted as long as the paperwork was in order. Novelty could be challenged at any point by someone submitting prior art and paying a small fee. The limited patent would thus lose the presumption of validity, but give the inventor some protection while either pursuing a full patent or filing new limited patents on further innovations. The proposed limited patent would also allow a form of the independent invention defense, allowing those parties that could prove they had implemented some of the claims prior to grant of the limited patent the right to continue (but still excluding all others from practicing those claims).
Fees for limited patents would be significantly less than for a full patent application, since they dispense with examination and require very little work from the patent office. Limited patents help improve the traditional examination process by helping to build the prior art database.
The best part about this proposed reform is that it doesn't directly disrupt those who favor keeping the current system as-is; an inventor would be free to choose which type of protection they wanted to apply for, applying for either a traditional patent or a limited patent.
Related:
posted by Jackson Lenford at 7:39 AM
6 Comments:
The best part is:
* the amount of litigation it will create between the "patent" owners & infringers
who just got ripped off
* the number of hours attorneys will bill for writing and defending the patents
* the number of poor "patent" owners that just got ripped off and left with nothing
* the total unavailability of licensing fees as the value will be nothing until litigated and the fact that much complex licensing negotiation will consume a large chunk of the protected time
* The actualization of the anti-commons problem
* The shear volume of nearly frivilous patent applications that will flood a system with almost no examination requirement simply because the opportunity cost is too high and the cost is so low
Yes, this is a GREAT idea!!!
I'm starting to doubt this guy's credentials
Absolutely -- there's a lot that could be better about this proposal, and you give a good list of some of the problems. But there are a bunch of positives, too:
1. A patent is only enforceable if a commercial product is produced by the patentee. That's huge. This gets rid of patent trolls, whose sole purpose is to dream up patent applications or purchase them from others, and then litigate. This says, "No product, no enforceable patent."
2. Eliminates the upfront burden on the patent office.
3. The first step in any litigation is an examination by the USPTO.
4. These limited-patents can be challenged via prior art with a small fee.
5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.
While the Hollaar reform is not perfect (because it doesn't directly revise the current patent system but instead trys to supplement it), I believe that the direction of his ideas is largely correct.
Yes, there are potential abuses of "limited patents." Lots of potential abuses. And we should be weary and give these ideas a lot of scrutiny.
But here's the core of the question you have to ask: would you willingly trade a tyrant's 20-year monopoly over a [non-obvious, well-known, or low-quality] idea for a 4-year monopoly over that same idea? I would. In a heart beat. Even if it meant that more such bad patents were granted. Especially if the new patents had less teeth, for example, if they lacked the presumption of validity. That's a lot of defanging right there.
So, while I'd certainly love to press for even more radical reform, I'll take this dose of reform on my way there. Especially if it has any chance of being accepted by the IP-maximalist camp (which, BTW, I think it does: Hollaar himself is a member of that camp).
The implimentation of this would absolutely spell the end of individual patents and place the whole process into the hands of those with the deepest pockets.
I suggest that the author should abandon Tenure and with absolutely no capital base, nor access to such, try and invent something useful using only the income normally used for living costs. Not over the few months envisaged, but over say twenty years or so. He would find that it is for all intents and purposes impossible to defend any patent in that environment.
Patents were devised as a mechanism to create new, competitive industry. Such new industry is supposed to be the mechanism whereby existing companies were to be controlled through the process of competition.
As things stand, it is impossible to so do as the independent capital that one needs to permit one to create an independant company on free enterprise terms, where the creator of the business owns the business, is not available.
Thus, at this moment, there is no free marketplace permitting an independant inventor to capitalise their business around their patents.
For that reason, there is no truely competitive industrial marketplace for the establishment of new, free enterprise based competitive industry.
THAT is the overwhelming problem.
In my case, no professional advisor would advise using venture capital as a VC, insisting on absolute control from the outset would have a vested interest in my failure. I have not "trolled". I invented, but those with deep pockets, including the United |States Government that granted the patents in the first place choose to ignor. They can afford to do so.
Until there is a free marketplace for new capital on free enterprise terms, to all intents and purposes, patents in the hands of an independant inventor are worthless.
I absolutely agree with you, Chris.
A single groundbreaking patent on something is pretty useless for independent inventors these days, if inventors actually wants to build and sell some products: big corps with 1000's of patents which they cross-license between each other with band together to fight your small company and kill you with their combined patents portfolio. An inventor of a better mousetrap still needs a license from a manyfacture of a basic primitive mousetrap to produce his better trap: guess what, does he get that license without giving away his patent to those big guys..
The only way to recoup money and time for independetn with a single patent is to find some big and nasty patent troll (e.g. Acacia) with rresources to sue the shit out of those big corps.
That is why those dirtbags are whining lo loud nowadays...
Chris Coles said:
The implimentation(sp) of this would absolutely spell the end of individual patents and place the whole process into the hands of those with the deepest pockets.
Unfortunately, the entire system is already in the hands of those with the deepest pockets, and is largely innaccessible to anyone without resources, just as you outlined. Sure, I can get a patent for a few thousand bucks (avg. cost is about $20k in the U.S.), but existing patent thickets mean that I'm sure to not be able to exercise my patent without paying royalties to someone else. The only way to avoid all that cost is to not actually produce anything, but rather obtain paper monopolies via the patent system and try to reap royalties from actual producers.
In such a system, should we really be surprised that patent trolls/pirates have risen to such power? That's how we designed the system. It is broken, and needs serious reform.
And the best reform available is abolishing patents altogether. That way, independent inventors can go ahead and invent to their hearts' content, and they can build products till the cows come home. They can use their superior knowledge and brainpower to invent such fantastically wonderful things that no competitor would be able to imitate them without significant research and time.
And if they could only 'invent' obvious, non-novel, trivial improvements, well, that's fine, too -- they would be rewarded according to the merit of the invention.
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