Reforms We Like
We've pointed you to many useful patent system reforms in the past. Today, we collect a few of our favorites together:
- The Independent Invention Defense
- Striking down Business Method Patents
- Eliminate Software Patents
- Premature Patent Expiration for Lack of Usefulness
- Fine Patent Holders for Valid Prior Art
- Make Statutory Invention Registraions Free
- Introduce a "Limited Patent" Option
posted by Jackson Lenford at 7:32 AM
3 Comments:
A couple of recommendations:
1) Eliminate transfer of patents. A person/citizen patents an idea. Fine. The patent will expire after 17 or however many years Congress sets this week. It also expires when the patent holder dies. Transfers are conditional, and can only go to the employer of the patent holder. Transfers expire when the patent holder is no longer an employee, or dies.
2) All expired patents go into the public domain. It should be a felony to apply for a patent on anything in the public domain.
3) It should be a felony to apply for a patent based on something the applican didn't do personally. All anyone challenging a patent or application should have to do, would be to demonstrate that someone else was working with that concept at the time of the application or prior to the application date. Not just 'prior art', but demonstrable that someone else had a possible claim to the idea.
Making patents non-transferable, and assignable only by employees should preserve the individual's right to profit from his invention, provide companies an incentive to patent new ideas, and put thousands of patent attorneys and hundreds of patent pirates out of business.
The only one of these reforms I like is getting rid of business method patents. The others have problems...
The independent invention defense is un-provable and would considerably lower the value of patents such that a company would rather keep their products trade secrets.
Patent expiration for lack of usefulness is just silly. Anyone can find a use for just about *anything*. Perhaps you're thinking of patents that defy the laws of physics. We should definitely require a working model for any patent that makes such claims.
Fining patent holders for missing prior art will only hurt the little guy. It won't harm big corporations that can afford fines and vast swaths of lawyers.
Making statutory registrations free sounds like a great idea, but how do you stop the patent office from becoming inundated with SIRs from large corporations that want to hurt their competitor's ability to file patents? The reason why companies currently limit the number of patents they file is precisely because it costs money. Imagine if IBM didn't have to pay: After a patent is granted, any subsequent possible improvement on that patent would be filed as SIRs... By the thousands. "Hey bob, how would you use this patent?" and anything off the top of their heads that wasn't worth patenting would become an SIR.
The Limited Patent option won't work because it doesn't limit patent challenges. If you grant a patent without examination--even for only 4 years--a company with an existing patent could sue the limited patent holder. Trials such as this can take more than 4 years!
I'd like to add my own:
Abolish software patents: They're no different from business method patents.
Make it illegal to keep a secret the design or implementation of any product that utilizes patents: If your company makes 3D graphics chips that license patents or utilize patents your company already owns, the specifications and interface for your 3D graphics chips should be published. The way it works right now is a company such as ATI will have patents on a few aspects of their chips, but the rest will remain trade secrets. This way they can get around one of the primary purposes of patents: Disclosure of an invention to the public. Patents on small bits of a larger product stifles innovation and prevents competitors from appearing in the market even after the patents expire.
-Riskable
http://www.riskable.com
"I have a license to kill -9"
Riskable,
I think we share common ground in our disdain for business method and software patents. It is hard to argue that we wouldn't be better off without these.
I'll respond to a couple of your other concerns:
The independent invention defense is certainly just as provable as the current concept of inception date. An independent inventor would need dated notebooks, vouched for by a third party, and the notebooks would have to demonstrate sufficient work to discover the invention. The inventor would also need to show, beyond reasonable doubt, that they weren't exposed to the original patent, which is virtually identical to "clean-room" approaches for reverse-engineering. None of this is without precedent.
On trade secrets -- I don't think they are such a detriment. One of the glaring problems with our system is that obvious things get patented all the time (search 'ridiculous' at this site to see a few). More companies holding trade-secrets instead of patents leads to a more natural monopoly power, rather than an arbitrary 20-year monopoly by government beauracrat fiat. Instead, the original inventor gets a monopoly until someone else can figure it out on their own. In olden times (when the patent system was instituted) this was bad, because trade guilds could keep secrets for centuries. Such secrecy is no longer feasible, and it is unlikely that others would not be able to discover the trade secret, independently, after a certain number of years of devotion. And if someone came up with a really super-clever non-obvious invention that no one else could duplicate for 35 years, well, they get 35 years of natural monopoly power. In this way, we get fairer monopoly terms, with the length based on merit and market forces.
"usefulness", with regard to patents, does indeed refer to 'workingness'. The suggestion is that the applicant prove that their invention work before being granted, meaning that "paper inventors" would actually have to do more than file USPTO paperwork to get approved. It used to be that working copies of the invention had to be submitted to the USPTO. Follow the link in the post for more info on how this could work.
Fines for missing prior art don't have to be paid, unless the patentee wants their patent to not be put on hold. This would not hurt the little guy any more than the big guy. The plain truth is, if we are to expect better prior art searches, we are going to have to hold the applicant responsible for some of that (whereas now, the applicant doesn't have any responsibility to know anything about prior art, and if they can get the examiner to miss some, all the better).
An inundation of SIRs is a bad thing, how? All the work with a SIR is done by the applicant. Prior art searches don't even need to happen for SIR examination -- they basically get rubber-stamped if they are submitted in the correct format. If we had a huge library of SIRs, finding prior art and weeding out bad patents becomes MUCH easier for the PTO examiners, because its all in the database.
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