With all of the changes Congress has pushed and all of the rhetoric flying around, one could be forgiven for thinking the problem with patents is that they’re either too hard to get or too costly to defend. I have a slightly different analysis, which is based more on what patents are supposed to accomplish, and how they are currently failing us as a society.
The original purpose of patents was to grant an inventor a limited monopoly on some useful invention for some period of time, to prevent someone else from coming in and simply copying a novel technology. In exchange for this protection (and this is critical), the inventor would serve the public good by disclosing the invention in sufficient detail that a third party could legally license the invention to make their own product, thus benefiting the inventor, the competitor, and society, serving both creativity and commerce. It was a powerful idea then, and it can be once again.
What happens today is that patents are granted for abstract ideas, inventions that have no working prototypes, or inventions that are kept secret in their details, more as a way to stifle competition by throwing up roadblocks than as a reward to the original inventors. This serves neither commerce nor creativity. Lone inventors can’t risk being sued for any of a million vague patents lurking out there. And a company wishing to research a new product may be told by their lawyers to actually ignore the vast patent database due to fears of triple damages for willful infringement. Their approach is to just deal with any "submarine" patents that later emerge as a risk of doing business.
If those patents do emerge (and they increasingly do), the threat of expensive litigation often forces some outcome other than justice, because it comes down to who has more money to fight. And with the changes Congress favors, it also comes down to who patents something first, not who actually invents. That last item is most troubling to me, because rushed patents can’t possibly be complete enough to serve as anything more than a placeholder, stifling competition in favor of the company with the best lawyers, not the best inventors. And again, society is ill served.
So what do we do about it, other than throwing out the whole system? Here are three easy steps.
Step one requires that all new patents must meet three basic tests, derived from the original purpose of patents:
- Is the patent novel and non-obvious to a skilled person in the trade? In other words, is it really new? Just as scientific papers are peer reviewed before publication, require peer review under NDA. The goal is to prevent any company from patenting something that is already common knowledge to people in the domain.
- Does the patented invention actually exist? Is there a working prototype that solves the problems claimed? The goal here is to prevent overly broad patents or patents that are still highly speculative. [such as the Sony patent on mind-control using sound waves or a few others I could mention.]
- Does the application include all of the information that a licensee would need to recreate the invention? This question presumes the purpose of patenting is to actually license technology, which should always be the case. So the licensor must, at some point, fully disclose the invention and give detailed guidelines for recreating it. This test, then, simply requires that this work is made public as the final monopoly is granted. It does not compel licensing. Those terms are subject to market forces.
Step two retroactively applies these rules to existing patents, starting with the most recent patents first. Companies should be given at least a year’s notice to begin revising their original patent application to conform to the new rules and another year to finish. If they don’t complete this task, they would lose patent protection after two years. Patents that are set to expire within two years of such notice would be exempt. If a patent exists and has been licensed, then meeting all of these tests should be relatively easy. Detailed licensee instructions should already be available. For patents that haven’t ever been licensed or which have been sold to IP holding companies, there may be some added work, but it is for the public good. And any company that feels disclosing the full IP would damage them could withdraw the patent at any point.
Step three, coincident with step two, publishes clear guidelines for new inventors as to what has been patented already and what technology is available for license. A simple keyword search is not sufficient. It really needs to be a database of ideas, techniques, and problem domains. The goal would be something that doesn’t just tell an inventor what not to re-invent, but also how to obtain those existing pieces and at what price. Inventors and business people can then sit down and judge how to best approach the introduction of a new product or service using both novel and licensed technology as appropriate. This database should also include systems for peer review of existing patents, such that concerns can be publicly logged (especially concerns that a disclosed patent doesn’t meet its claims) and the status of any legal actions regarding individual patents can be seen by all.
These are the steps to a sane patent system, one that helps inventors, protects investments in R&D, and advances the public good by fostering creativity and a more level playing field for inventors and innovative companies.