A proposal on patent reform

http://bentilly.blogspot.com/2009/11/proposal-on-patent-reform.html

by btilly • 17 years ago

12 10 17 years ago

bentilly.blogspot.com

jacquesm2• 17 years ago

I have a much simpler proposal:

Let's abolish all patents, both on software and 'regular' ones for a 50 year period and then re-evaluate, if it led to more innovation then we'll keep it, if not we will go back to the old system.

Simple A/B testing. I highly doubt that the lobby would go for it though...

noss2• 17 years ago

Isn't Iran free of immaterial rights laws?

jacquesm2• 17 years ago

Are you suggesting that a society without patents would immediately devolve into something like Iran ?

dan_the_welder• 17 years ago

A patent is a privilege.

I have a right to make a living and there are finite ways to do so, if my right to make a living is blocked by others privileges then we don't have much of a free society.

Privileges are directly opposed to rights. Either we have all have rights or some have privileges. The real argument is about what kind of society we want to have.

frig3• 17 years ago

Too vague to be helpful; only appeal is a seemingly-more-objective test for non-obviousness (nonobvious iff prerequisites developed AND not solved in previous 10 years), but vagueness of relevant terms negates any putative step forward in "objectivity". Also provides incentives to slow down the rate of innovation and has potential to be self-defeating.

I won't harass you about the vagueness as I think that's pretty obvious (do you really want either federal judges or, god forbid, a jury of citizens to be the judge of what is "commercially viable"?).

The incentive to slow down comes from your 10-year rule: if I have a good idea that is economically useful, ceteris paribus the longer I wait to patent it the likelier I am to actually get an enforceable patent (b/c the prerequisites aren't getting any younger). Now obviously in some cases there will be concern that rivals or competitors will jump in front and patent it instead, but in many smallish fields there really aren't that many people working on the same topic at the same time and what competitors there are will all be operating under the same overall incentive (and thus will themselves have some incentive to delay as long as possible).

So the incentive to file for a patent immediately is the same as under the status quo -- make sure you get out ahead of competitors -- but you add in a countervailing incentive to delay that the present system (for all its faults) does not have.

This is particularly egregious wrt brand-new technologies (like, eg, a transistor or the laser): anything making use of a laser or a transistor wouldn't be patentable for ~10 years after the development of that technology. This may help prevent some stupid patents -- land-grab stuff around doing stuff with a laser -- but it also means that any invention that's mostly-done but missing something (like, eg, it'd work if only I had a source of coherent light) now has a 10-year time out on it, also, as it won't have been solvable for 10 years until 10 years have passed from the introduction of the missing piece.

You could try patching your solvability criterion to work around the "missing piece" phenomena but if you put a tiny loophole in next thing you know people will be driving a caravan of 18-wheelers through it.

Your proposal's criteria is also at the margins somewhat self-defeating, especially in the case of a trial in which a patent's validity is called into question.

The person defending it basically has to defend the patent by minimizing its novelty: all the constituents have to be old + well-understood and so on. So the ideal patent is minimally-inventive: it takes solves a known problem using well-known stuff in novel combination...but not too novel, as something too novel runs the risk of exposing you to arguments that the problem you solved wasn't solvable b/c solving it required too many of your own innovations.

The person attacking it has to attack it by maximizing its novelty: claim that the problem wasn't solvable for as long as you're claiming b/c it depended on sub-inventions and so forth; rather than being a minimally-non-obvious recombination of existing technologies you're actually inventing stuff, you see, which works against your patent's validity.

The 10-year period + commercial viability argument cuts both ways: on the one hand if it was solvable for awhile and was commercially viable you can use that as evidence for non-obviousness, but on the other hand your attacker can use the same facts to claim it either wasn't solvable before you went and invented stuff, wasn't actually commercially viable, or some other reason; you're making an overbroad assumption about what seems like reasonable assumptions for other people to hold about the invention process.

So you wind up with inventors forced to downplay the inventiveness of their inventions -- and shy away from overly-novel areas of inquiry -- and attackers overplaying the inventiveness of the inventions for which they hope to invalidate the patents, which scenario is comical but unproductive.

btilly2• 17 years ago

What you see as deficiencies, I see as advantages.

The point of the patent system (at least in the USA) is to provide incentives for people to come up with ideas that otherwise people wouldn't come up with. If you are racing to the patent office for fear that someone else will come up with the idea, then your actions demonstrate that you likely shouldn't be granted the patent.

For instance take the "mostly done" issue. If you have it mostly done, until that last piece arrives nobody has any idea how many other people had it mostly done as well. Which means that it is impossible to figure out how innovative your idea is, and therefore we don't have good evidence that you really deserve a patent. Given that handing out patents causes real economic harm to others, I don't think they should be handed out on such poor evidence and therefore don't want to see those patents handed out so quickly.

I am strongly against allowing an exception because it opens up a common form of patent abuse. The story is that a small company invents a new technology and get a patent on it. A big company would like the patent, but can't get access. Instead they get patents on all of the things the small company needs to do to commercialize their invention. Effectively they build a "patent wall" around the existing patent. And now the small company is forced to come to terms with the big ones.

The one issue you raise that I agree with is that often people build on their own ideas. The better mousetrap is often better in several ways, not all of which you think of at one time. But in that case I see two possibilities. One is that the subsequent innovations can be used without your other innovations. In that case you can get a patent on them. The other is that the subsequent innovations can't be used without your other innovations. In that case the patent you can get on your previous innovations will protect your subsequent as well. Either way things work out.

frig3• 17 years ago

I'd say you're slightly misreading the point of the patent system; I'd argue the underlying "point" is what it says it is in the constitution -- to promote the progress of the useful arts + sciences -- which isn't exactly the same thing as "come up with ideas that people wouldn't otherwise come up with".

EG: one aspect of the patent system is that it promotes invention of work-around, "me-too" inventions to get around patent restrictions (eg: PNG vs. GIF, for a computer example).

I'd argue that's more often a bug than a feature: worthwhile inventions would happen anyways, and engineering-around-a-known-solution is far more often a deadweight loss than a benefit to the economy as a whole; there many others (mainly members of the patent bar) that'd argue that such work-arounds are a feature, as they promote "new invention" that otherwise wouldn't happen (since you'd just use the known-good solution).

I'm sort of assuming you usually see this "my way" on this issue; if you do, then framing it as "think of stuff that wouldn't be invented otherwise" doesn't give you much to stand on (as clearly most workarounds wouldn't be thought of without the patent system...).

Sticking with the promotion-of-progress language gives you a much firmer frame for your arguments.

Your framing also is making you overlook the importance of disclosure in the patent system; it's not an accident that a patent not only describes what it does (separate alumina from bauxite) but also how it works (supposedly in enough detail that someone else could implement the invention by reading the patent, though in practice there's a strong incentive to obfuscate that as much as you can get away with).

The argument here is that this promotes the progress of the useful arts and sciences as it makes the knowledge underlying a particular invention available essentially immediately -- as soon as the filer rushes to the patent office -- allowing work on derivative inventions to start immediately, thereby increasing the rate at which new ideas are come-up-with, etc.

So while on the one hand you're kind-of right -- patents that have lots of simultaneous inventors probably are too obvious to be useful -- you've not addressed the real thrust of the delay issue (which I admittedly could have made clearer):

- for "good" patents in your system there's an incentive to wait as long as possible (as the longer you wait the greater the odds your patent is valid); this'd be especially true for the ones that don't have much to worry about from co-filers b/c they're legit inventions

- this means that the rate of disclosure of the genuinely-novel inventions would be expected to go down, as ceteris paribus there's more incentive to delay filing and therefore delay disclosure of the underlying ideas

- so the calculation what is the effect on the rate of progress of the useful arts + sciences under your proposal is roughly ("increased progress due to lack of bogus patents no longer gumming up the works") - ("reduced rate of disclosure of truly novel inventions"), and imho the latter term would be quite substantial and would need more arguments to justify it

The simpler hack to get what you want is removing the presumption of validity (too lazy to check if I mentioned it already or not); this would change the patent-infringement workflow from:

- file lawsuit; patents assumed valid until (or if) defendant successfully challenges every relevant claim in every relevant patent

to:

- file lawsuit; filer must successfully "validate" each relevant claim in every relevant patent, and only then will proof of infringement imply damages are merited

...and this can be phased in in ways that'd not be crazily disruptive (eg: phased introduction and/or the presumption of (in)validity is on a per-area basis, so pharma is presumed valid but not software).

A proposal on patent reform

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