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Drop Patents?

© September 2003 Tony Lawrence

Link: Maybe Patents Aren't Such A Hot Idea

You won't get much argument from me on this one. I'm not sure we could do away with the idea entirely (though the fashion industry seems to do fine without it), there is no doubt in my mind that if we can't dump them outright, we at least need to drastically shorten the term of protection.

Entrenched power would fight any attempt in that direction. Microsoft, IBM, GM - you name it, whatever the industry, patents and copyrights keep them on top. One of the arguments in favor of patents is that the opposite is trade secrets, which (duh!) means that ideas can remain secret and never benefit society by being released. That's true, though in many cases reverse engineering solves that problem, and far too many patents protect ideas that are transparently obvious anyway. Maybe that should be part of what determines how long a patent should last - if it couldn't be kept as a trade secret because it's so damn obvious, perhaps the length of the patent would be proportionately shortened.

I think it's far past time for reform in this area.

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I don't think total elimination of patent laws is the way to go. Rather, what I think is needed is a return to how patent applications were examined and approved -- or disapproved -- in the past. The letters patent idea that is enumerated in the U.S. Constitution (Article I, Section 8) was derived from 17th century English common law, and like its prototype, was intended to promote the development of the arts and sciences so as to benefit society in general (as well as the inventor, of course). Key to any workable patent system is the concept of the inventor being given the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for a limited amount of time. If that is taken away, then the incentive to expend time and money to develop new products is likewise removed.

Where I think our patent system has gone awry is in allowing patents to be issued for abstract thought (intellectual property), rather than concrete embodiment, as was originally required by older letters patent laws. Further corruption of the process came at the hands of the lawyers who evidently forgot about the part where society was supposed to be benefitted by inventions.

I believe we would do well to substantially tighten the definition of what can or cannot be patented, and eliminate any possibility of "intellectual property" patents from being granted. In other words, a would-be inventor could think and plan all he wanted about whatever it is he wanted to invent, but could not patent his ideas and thoughts, only the actual embodiment. Furthermore, patent laws should be rewritten to specifically exclude abstractness of any kind, which would block software patents, as well as methods for working with or processing information in general. Once a patent had expired it could not be renewed by merely making a detail change to the original patent.

Lastly, I believe the present examination system for patents is too easily corrupted. Many patent examiners simply don't have enough training and experience in areas that they are routinely expected to make judgements. Oftentimes, prior art is not considered and the result, predictably, is the issuance of undeserved patents (vidi the "one-click" nonsense).


Maybe the Internet is the answer. What if we adopted a collaborative, peer-reviewed model for patent review? This would be a sort of Project Greenlight for patents where if you submit one you have to review five. The best rated patents would bubble up the review pyramid and only the top, most original 200 patents (say) would be granted each month.

This would end complaints about backlog, lame patents, ignorance of prior art, etc. At the same time this scheme might actually restore the luster of innovation that patents once had before they became a backroom lottery for lawyers.

-- PixelMan

That's a great idea..


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