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Comment by shiven | Hacker News Reader

Here is a hypothetical solution:

(0). Make patent issue fee ridiculously expensive (100k+ ?).

(1). Increase the salaries of every patent examiner to ridiculously high levels, supported by the extremely high fee.

(2). Make every patent examiner personally liable for approving a patent, to the extent of a lien on their personal assets. No bankruptcy allowed (as for student loans).

(3). If any patent is later proved to be carelessly approved, infringing on prior art or broader than it deserved to be, the patent examiner should be held liable and pay damages for every patent they approved that was struck down.

That might help cut down the indiscriminate issuance of patents that should never have been allowed in the first place.

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I agree that changing the incentive structure would help, but I don't think targeting individual examiners is the best way to do it. I think the right target is the patent office itself.

The only thing you've listed above that would change the patent office's incentives are the increased issue fees - which would only encourage them to let more bad patents through. Yes, individual examiners would push back because of their personal liability, but they're really trapped between a rock (their boss) and a hard place (getting sued in the future).

On the other hand, if you made the patent office the target of all the penalties for issuing a bad patent (legal fees, damages, etc.) then they'd take care of examiners themselves (not measuring by patent-processing rate, allowing additional time for aggressive prior art searches and so on).

Sure, sure. (Guess I missed the forest for the trees and all that...)

But in either case, first the patent granting authority needs to be held grossly liable to prevent this rampant abuse, then and only then will subsequent measures be effective.

However, targeting the examiners focuses on the personal responsibilty for their actions. If you institutionalize that responsibility (patent office vs patent examiner) you create a situation where the perpetrator (examiner/boss) hides behind the collective back of the patent office and the taxpayers are again left holding the bag of liability.

A person or a discrete group of persons approved the granting of this right to the applicant (or the denial of freedom to non-applicants). Why should they be absolved of their individual responsibility, for their individual actions?

I'd gladly take the job. I'd even buy an ergonomic "DENIED" stamp.

It's the only stamp I'd use.

(2) Make every patent examiner personally liable for approving a patent, to the extent of a lien on their personal assets. No bankruptcy allowed (as for student loans).

This is never going to happen and would be an abusive illegal employment practice if it did.

Make every patent applicant (and patent agent/counsel) liable for filing patent claims that are found invalid whether issues or not.

You could make the agents self-employed on a bounty basis rather like the old Lloyd's Names

http://moneyweek.com/how-to-become-a-lloyds-name-42723/

However, the inevitable Black Swann event caused changes even in that very high risk system...

"Historically, Names had unlimited liability to the risks they were underwriting. In the late 1980s/early 1990s, Lloyd’s entered the most traumatic time in its history. Unexpectedly large legal awards in US courts on asbestos, pollution and health hazard policies (APH) served up huge losses to many Names, a large number of whom lost their shirts. Names’ numbers dropped from over 30,000 to below 10,000."

I think just giving patent examiners enough time and resources to actually verify the claims would probably cut down a lot of the problem. That and a specialised court like

http://www.justice.gov.uk/courts/rcj-rolls-building/patents-...

instead of a general purpose district court sitting with a lay jury

How about a reform that tie patents with the R&D costs? placing the incentive where it's actually matter

i.e:

* for each patent filed, one should provide an 'expanse clause' of the R&D expanses

* if one file a patent then those expanses became taxable (the same way warehouse stock is?)

* when applying one can choose to hold the patent for a limited some of years (say 5) WITHOUT dependeing on ROI, OR hold the patent untill ROI exced 10 fold but no longer then 10 years. (number cand depend on general public priorities {medical , novelty , etc.} )

* the 'expanse clause' should be limited to what R&D that is strongly tied with the current patent, but can include failed R&D as long as they are strongly tied to the successed one.

* patent must reach a working implementation within the 1st year of filing, or they are revoked.

* maybe have two types of patents: - one like the above for those with working implementation, - the other for 'consept patents' that have a fix price for filing, and can be held for up to 12 months before one must file a 'regular patent' with a working implementation, and if faild to do so, it is revoked retroactivly so it can be used to sue.

[*] P.S. not a native english speaker, so commetns on grammer and spelling mistakes are actually welcome.

it's actually matter -> it actually matters

expanse -> expense

Somewhat less draconian:

1. Make patent applications free of cost, so anyone can play unless they start clogging up the system.

2. Applicants must wait 2^n days between applications, where n is the applicant's number of rejected applications within the past 1,000 years. Non-human persons must be at least 1 year old before applying.

3. Examiners are paid approximately the nation's median income, but also receive rights to 1% of license fees for patents they approve. If an approved patent is ever overturned in court, the examiner is fired and loses all future royalties for any other patents they approved. Those royalties then go to the patent office. Budget surpluses go toward scientific research or maybe education grants.

4. Patents assigned to biological human inventors expire after 20 years. Others expire after 5 years.

How about -- No Patents?

Patents are ideas... if you can think of it... so can someone else.

Patents were intended to protect someone's investment into an idea. Today, they just serve as cash cows.

With no patents, a company would be forced to continuously innovate and stay ahead of the curve -- which would replace their patent warchest with a warchest of talented individuals and innovators instead.

The idea that patents are not necessary, useful or relevant in today's society is childish. Patents still play a very key role is spurring innovation and allowing innovative players to profit off of their development and creation of new products.

Clearly the system is broken to the point that people patent anything just so they can sue others who meet the general ideology of the patent. Clearly this is not what the spirit of patenting was designed for. A system overhaul is more appropriate than to rid all patents.

> The idea that patents are not necessary, useful or relevant in today's society is childish.

Also, highly impractical.

How so? (honestly asking)

The entire idea of capitalism is to have fierce competition between companies -- patents, by design, allow one company to innovate once, then nobody else can make something similar. That seems, very anti-competitive (and open for abuse as evidenced by today's "patent wars").

If nobody could "squat" on an idea, then instead of innovating once, you would have to continuously innovate to stay in the lead of your industry.

That's a rather naive view.

If you need to pay billions of research cost for something that can be immediately copied, you simply don't do the research. There's plenty of cheap more or less useless improvements instead.

We already see that in medicine, where R&D has become so ludicrously expensive for many actually needed drugs that people would rather create a new ED pill.

Capitalism & "free markets" (as if!) fail as a motor of progress, per se. The only thing they're good at is extraction of wealth. That's why we have government regulation in the first place - to direct the efficiencies created by the market place.

I have no clue why you're being downvoted. But what you write is the gospel truth when it comes to drug discovery.

Speaking from personal experience here.

The polio vaccines were not patented. Neither is metformin (for diabetes).

Unpatented drugs can be done. (I'm trying fwiw)

You mean pharmaceutical, not "medicine". The reason why the costs have gone up is because big pharma has become so bloated and top heavy they can't even fart straight. They no longer even develop new drugs, they buy little, fleet-of-foot companies that do. You know: the ones actually trying to _make_ something: the ones competing.

How did they get that way? Because of the patent system.

Manuel Navia[0] would likely disagree. To an extent, at least.

The fleet-footed companies you talk about, generate at best, lead compounds. Turning those leads to INDs (investigational new drugs) and then actual "medicine" is totally controlled by the FDA and is a multi-year, multi-million dollar endeavor, that is well beyond the ken of the fleet-footed operators. Many of these drug candidates fail late in the game, after 5-10 years of human trials, sinking the investment of time and effort with them. Meanwhile the patent clock is running and a drug that hits the market has far less than the 20 year patent term to recoup the costs and generate revenue to discover and groom the next life saving drug.

[0]http://www.oxbio.com/mnavia.html

I read some article a while ago explaining that a lot of these costs are inflated by the drug cartels, er, I mean big pharma. And that a lot of regulations are there to create artificial barriers to entry and are promoted by big pharma for this reason. It comes all of one piece: patents encourage lazy encumbancy which encourages regulation, which encourages patents.

Your narrative actually supports the opposite position. Why would big pharma companies buy "little, fleet-of-foot companies" if they could simply wait for those companies to develop a drug, copy the formula, then bury those companies using their huge advertising budgets? The winning strategy in a world without patents in an industry with high R&D requirements is to never develop anything new, but spend all your money on advertising and building an efficient outsourced manufacturing operation.

Just look at the PC industry, where the technology is all open and commoditized. Acer, Lenovo, Asus, etc, own the market, nobody makes any real money, and nobody tries to innovate because new designs are easily copied and margins are razor-thin.

Your argument only works when you have large lazy incumbents that the patent system created in the first place. In a world without laws that say you own ideas, these large lazy incumbents don't exist.

> The idea that patents are not necessary, useful or relevant in today's society is childish.

It's childish to believe that patents are not necessary?

> Patents still play a very key role is spurring innovation and allowing innovative players to profit off of their development and creation of new products.

What is your evidence for this statement?

I would say that patents seem to mainly be profitable for lawyers and the companies that employ them rather than "innovative players".

Eliminating patents altogether may be better than what we have now, but I think there is a sweet spot to be found where they encourage more private investment and publication of research than there would be with no patent system.

Indeed. The growing free software & hardware communities, and the numerous companies they spin off, are an existence proof that patents aren't a requirement of a working economy. They aren't going away any time soon until free hardware makes up a larger proportion of the market, because the current patent holders have too much to lose, and can buy politicians who will keep propping up the current system. So, start more successful free hardware companies that ignore the patent system, gradually rendering patents less relevant and less damaging.

Problem: Garage-Inventor Bob's patent will be thrown out, because if it gets challenged Bob will probably lose since he has no big pockets nor legal clout. (Not because the idea itself is good or bad.)

Later, SuperMegaCo will submit a marginally different formulation of the same basic thing, and it'll get approved because they're probably going to win any long expensive court-battles.

Why not hold the patent filers liable and have them paid damages for their struck down patents? Why blame the examiners? Blame the source of the problem.

Liability is the antithesis of American business. (The act of incorporating is in part a shield against accountability and liability.)

It is the examiners who allow patents through. I would go so far as to argue that just because I ask for something, from the public, via the government, I shouldn't just get it. It is the responsibity of the examiners to deny a non-deserving ask.

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