Seeking an inventive patent system
The Philadelphia Enquirer provides a succinct summary of our current patent woes in today's opinion piece:
When fueled with adequate resources, these [patent] systems encourage the creation of inventions and drive economic growth.The commentary recommends several useful reforms, including a suggestion to
At one time, the U.S. patent system was an example of this creative dynamic. Not anymore, as patent-related issues have become uncertain, [and] lengthy, legal proceedings rather than business or scientific discussions [determine the outcomes].
adopt a "probation" system, in which patents are granted but then subject to a rigorous review by interested third parties. Only an invention that passes the scrutiny of experts and competitors would be assigned a permanent patent, making it more robust.This is similar in nature to premature expiration combined with incentives for encouraging applicants to find their own prior art, but is stated more concisely under the term "Patent Probation."
posted by Jackson Lenford at 7:17 AM
3 Comments:
"Only an invention that passes the scrutiny of experts and competitors would be assigned a permanent patent, making it more robust."
Are you guys insane ?
Just how would any great invention pass "the scrutiny of experts and competitors" if all they want is to kill the patent, so they can get to use invention for free...
Some people obviously have no idea what they write about...
An adversarial model is used throughout our world in order to arrive at truth. The legal system is founded on the adversarial model. Public discourse, political debate, and democratic elections are modeled on the adversarial dialectic.
The patent system, on the other hand, is non-adversarial. The patent applicant pays the patent office to grant a patent. There is no adversary, even though the examiner is supposed to play the role of a disinterested third party.
What is so frightening about adding adversarial debate to patent validity questions? The presence of a motivated competitor in the process can only increase quality.
No one is arguing for a system in which any adversay has complete veto power over granting a patent -- that would be insane. But to say that a competitor can't contribute to the process by pointing to prior art? Are you crazy?
One other way to look at it:
We already have a system where competitors can challange patents via an adversarial model: the court system.
The big problem with how it works now, however, is that the challenge process is slow and expensive, and in the meantime, the holder of a dubious patent can abuse that grant and cause incredible harm.
Why not let the competitor take their best shot at the patent before it fully grants?
Benefits of the Probationary Patent:
1. More certainty for the patent holder when the patent does grant.
2. Better patent quality.
3. No slow down in grant process (the patent grants just as it does today, but is classified in a probationary state. It then either expires prematurely or gets fully vetted by the scrutiny of adversaries during the probationary stage).
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