Reforming the Patent System Toward a Minimalist System

http://www.becker-posner-blog.com/2012/09/reforming-the-patent-system-toward-a-minimalist-system-becker.html

by phenylene • 14 years ago

71 42 14 years ago

khmel2• 14 years ago

Patents bring the following trade-off: inventor monopoly defendence vs. block of progress\future use cases utilizing patent. So patents both are enforcing and slowing innovation.

This could be fixed with with the following solution that will maximize public good. There're no good reason for 20 years patent periods in some industries with short cycle of product development, like software, mobile, cloud etc. Cleraly, after first 3-5 years patents start to be either completely useless or slowing down both patent holder's and external innovations. If company is defended by patent, there's no urgency for innovation. This is unfair advantage.

danielweber• 14 years ago

The 2-3 year wait on getting a patent issued can be an eternity in software while a competitor has ripped you off soon after you released. Anyone who has been in that case would gladly trade a term of half the length for a granting that took place twice as quickly.

I think software needs a new kind of protection, that issues faster, makes it easier for other people to search, and expires sooner.

khmel2• 14 years ago

I agree

vevillas• 14 years ago

I just recently wrote a paper on software patents. Although we could suggest a shorter patent term, there are many practicalities in the process of granting patents that makes it an inferior solution to abolish software patents altogether.

Even without patents, we still have copyrights, "dress trade" and other nuances of the legal system, before we really have a worry-free, innovative environment.

God and the compilers bless the brave man to embrace such noble cause.

rayiner9• 14 years ago

From the blog post:

"Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents (or without other benefits). Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling."

I generally agree with this, but I think it's a little analytically lazy. I think the Supreme Court was right to recognize that we should not just categorically ban certain kinds of patents. Instead, we should articulate the distinctions between the two industries and reformulate the patent eligibility criterion in terms of this distinction.

eurleif• 14 years ago

"expensive to innovate and cheap to copy" sounds like eligibility criteria to me.

jaekwon3• 14 years ago

Any big company can pour any large amount of money to "innovate", which will probably help them bring the product to market sooner, but that isn't justification for a temporary monopoly grant.

"Cheap to copy" sounds like something to be embraced.

mtgx• 14 years ago

I wish the Patent Office would approve patents only on that criteria. Is slide to unlock "expensive" to innovate? No? Then rejected.

jaekwon3• 14 years ago

We'd probably have better and cheaper drugs without the patent system. If more companies can make and sell the same drug, more companies can also fund research.

Patents should be categorically banned.

pinaceae2• 14 years ago

no. the upfront costs for pharma development are prohibitive. the chances of a new molecule making it through clinical trials is really small.

the economic crisis has put a lot of emphasis on efficacy for inclusion on various formulary schemes, be it private ones like in the US or state-run ones like in EU. now you need an approved product that is also not only marginally better than existing stuff. just takes away some nasty side effect? no reimbursement for you, pharma-economics trumps this.

so, you have run ups of 10 years to line up a single new drug. scientists, the whole approval chain, supply chain, etc. then you get approval and your drug is good enough to be reimbursed, hooray. as the FDA process is public, your generic competitors have been watching - now that you have proven everything, they can flood the market and can undercut you significantly as they do not need to recuperate the initial investment of 10 years.

you have this happen once or twice and then say fuck it. let's play the lottery, better ROI.

the whole patent system was invented for a reason. it makes perfect sense for pharma. abolish it there and drug development will only happen through government programs.

rayiner9• 14 years ago

Think of this in more precise economic terms. Say it takes $X to develop an invention that produces $Y of social benefit. If the invention is cheaply and easily copyable, people won't invest the $X unless they can recoup at least $X + some profit out of the $Y of social benefit. It's a classic free-rider problem. It's the economic reason why we have government-funded defense instead of private defense.

InclinedPlane2• 14 years ago

This is borne out of a massive incorrect assessment of the pharmaceutical industry. It takes a tremendous amount of money to bring a drug to market, billions. More if you count all of the drugs that are tried but fail to meet expectations (of efficacy or safety). If you don't allow drug makers a window of time in which to make back their R&D costs through high profit margins then you simply will not see as many new drugs developed.

davidw• 14 years ago

Saying "we should have patents for X and Y industries" seems... a bit static. The ideal thing would be to have a system for observing and keeping track of things. For the sake of argument, say developing a drug gets as easy as putting up a web site. At that point, patent protection no longer makes sense. Or perhaps some new industry springs up - how much patent protection should be given? There should be some kind of reasonably objective way of deciding.

Zigurd2• 14 years ago

Citing the pharma industry as a strong patent success story is a dubious place to make a stand. There is a lot less good science behind pharma than most people think: http://www.ted.com/talks/ben_goldacre_what_doctors_don_t_kno...

gojomo3• 14 years ago

Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example:

• independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well

• allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'

rayiner9• 14 years ago

I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.

gojomo3• 14 years ago

I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two.

Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order.

There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.

dctoedt• 14 years ago

> I think proof of independent invention should at the very least establish a presumption that the invention is not novel.

Proof of independent invention might not establish a presumption of lack of novelty, but it can help with proof of obviousness. As one author noted a few years ago, "The Federal Circuit has stated that, '[T]he possibility of near simultaneous invention by two or more equally talented inventors working independently,… may or may not be an indication of obviousness when considered in light of all the circumstances.' [Citations omitted] In other words, the fact that another person simultaneously and independently created the same invention claimed in the patent-in-suit can serve as an indication that the invention was obvious." \1

\1 Brent Yamashita [of DLA Piper], Secondary Considerations of Obviousness in a Patent Case: The Seldom-Used "Simultaneous Invention" Factor, at http://www.patentlyo.com/patent/2008/07/secondary-consi.html (omissions in original).

ajb• 14 years ago

Becker and Posner tend to make pairs of posts on the same subject. The OP is from Becker, here is the corresponding post from Posner: http://www.becker-posner-blog.com/2012/09/do-patent-and-copy...

justincpollard• 14 years ago

True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "tap to zoom" patent.

sliverstorm• 14 years ago

True innovation protects itself in most cases

I feel like this needs some substantiation before you springboard off into your argument.

rayiner9• 14 years ago

So there are two kinds of patents we're talking about here. One is a utility patent, the other is a design patent. Most of the patents in Apple's suit against Samsung are design patents. See: http://en.wikipedia.org/wiki/Design_patent#Comparison_to_uti...

The purpose of a design patent isn't to protect a novel invention that took tons of R&D to develop. Rather it straddles the gap between patent law and trademark law. The purpose is to protect the functional aesthetic of a product.

They are two very different things. A a feature protected by a design patent is supposed to have no functional utility. If e.g. research showed that the "bounce back" feature had the optimal visual feedback in clinical testing, that would actually go to invalidating the patent. The reason they are protected is precisely because they are so arbitrary. There is no need to use something like the "bounce back" feature other than to copy your competitor.

nitrogen• 14 years ago

I believe the bounce-back patent used against Samsung was a utility patent.

pg7• 14 years ago

Oh, I can't wait to see how lobbyists and lawyers allow to dismantle the patent system ;-) I'd like to give some constructive critic, however. So, I propose the opposite approach. Let's make the whole system even more complex and expensive for patent holders.

Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money.

Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.

Reforming the Patent System Toward a Minimalist System

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