One thing missing in the patent system is that the patent seeker should pay a "fee" of $1000 if it is patentlyobvious that prior art exists.
That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.
That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.
And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.
IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?
If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease.
Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible.
The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies.
There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.
I think it's the opposite. Since it costs so much $ to fund clinical trials and apply for regulatory approval, the lack of patents would stifle innovation because the pharma company that discovered the drug wouldn't be able to recoup their development costs if other companies were waiting in the wings, ready to sell a generic version of the same drug.
If development costs (especially regulatory approval costs) go down significantly, then I think you can argue that drug patents are an unnecessary evil. But if things stay as they are, then they are a necessary evil.
You sink all of that money in, with the hopes that your drug gets approved. And then, once you've done the heavy lifting, every generic manufacturer can come along and sell the drug because you don't have it patented?
No rational person/company will do that.
In a patent-free world, those regulations wouldn't hold weight. What would happen (I imagine) is independently sponsored r&d produces drugs for trial that the FDA itself puts through clinical trials on taxpayer money. You can't sell a drug without FDA approval still, but since drug companies aren't operating as super-for-profit businesses on chemical compounds to help people live, they would foot the bill to make sure its safe.
It would be interesting to see if your scenario would end up doing a better or worse job with respect to drug development.
Systems (legal, computer, etc.) need to be developed with the full expectation that people will do everything in their power to exploit them.
Another argument would be that they promote innovation by (1) preventing blatant rip offs in the first place, (2) incentivizing individual inventors who invest their time and money with the assurance that their efforts won't be blatantly ripped off in the end by someone with more resources.
There are countless examples of truly innovative patents filed by individuals who devoted their lives to creating new things. Some of the inventors profited directly from their patents, others spent their life savings in court trying to defend their patents.
There are also countless patents for idiotic ideas, and countless idiotic patents that shouldn't have been filed in the first place. But saying all patents are bad might be throwing out the baby with the bathwater.
Similarly, what do you do about the "I was accidently too broad" cases, which are just as dangerous.
Unless somehow they began rejecting so many applications, and those rejections all cost more than the fees collected from those applications, so as to total more in losses than the surplus revenue of the rest of the PTO (all other patent and trademark activity, including renewals) over its costs.
Which Isn't Going To Happen.
I would hope that filers for patents that are rejected would still get charged a fee. If they aren't, they should be. After all, it still takes up a patent clerk's time.
1) Pretty much each and every action has a fee attached [1].
2) Each rejection has a 3 - 6 month time limit to be responded to.
3) Most applicants will fight every rejection to preserve their rights.
4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months. However, granted patents are not guaranteed to be renewed, which means their contribution is reduced [4, 5].
So if you want to talk perverse incentives, the USPTO actually have greater incentive to issue more rejections and collect frequent short-term fees on applicant responses, than they do to issue patents and collect infrequent long-term fees on renewals.
[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm
[2] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm#mai...
[3] http://www.patentlyo.com/patent/2010/06/patent-maintenance-f...
[4] http://btlj.org/data/articles/20_04_02.pdf
[5] http://www.uspto.gov/about/stratplan/ar/2011/mda_06_01_03.ht...
1. There is no evidence to back your thesis that "more granted patents fuels the fire of more applications". See this graph [1] of allowance rates in 2000 - 2005 (for an explanation, ask a patent attorney or agent about "Dudas") and this table [2] for number of applications over that time period. There is zero correlation with the steep drop in allowance rates and the rate of new patent applications over the relevant time periods.
2. Why do you think your idea of "the right thing" is actually the right thing, if any such thing exists? Just because the HN echo chamber agrees with you? As I have shown time and time again, the Internet, especially tech media, has no real knowledge of how patents work.
3. The Supreme Court, let alone the CAFC, the PTO and various courts, cannot even define what "software patents" are. How would you begin to limit or eliminate them?
4. None of the above entities have found sufficient rationale to exclude business method patents, let alone software patents. Contrary to popular belief, it's not because they are stupid or technically illiterate, it's because they are very careful thinkers and make the best of what they can given their boundaries.
5. The budget and staffing of the USPTO is, unfortunately, mostly independent of the number of patent applications they receive. Currently, they generate more fees than they are allocated a budget for, and the federal government siphons away the rest.
[1] http://www.patentlyo.com/patent/PatentlyO2006059.jpg [2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm
2.3.4. I come to my opinions as a veteran professional programmer, a named inventor on three US software patents (which I now regret signing off on), a software business owner, and a long-time avid follower of this issue. I'm sure that others, perhaps yourself included, may know more about the ins and outs of the patent legal system than I do, but I submit that you and your patent-defending ilk can't see the forest for the trees. The forest is that the vast majority of software-related patents are total bullshit. Given your role here as patent apologist, I don't think I will try to make a case to you why that is; I don't think that would be time well spent.
5. Find me a chart like your second link which shows the staffing levels of the USPTO over time. I'll bet it shows the same upward trend as patent applications and grants.
That's worth a chuckle.
(In truth, if it were patently obvious, this would be a much easier problem...)