A proposal on patent reform
bentilly.blogspot.com
bentilly.blogspot.com
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.
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.
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).
I agree with you on the intent of the design of the patent system. However in a world filled with overbroad junk patents, where accidental infringement is much better than willful infringement, there are real incentives for innovative people to _not_ read patents. Because reading them opens you up to liability without teaching you anything you couldn't have thought of on your own.
As for the cost of waiting, you are right that the incentive to wait is an inefficiency in my proposal. However the aim here is to achieve a good trade-off. Obviously more detailed analysis is required to find whether it achieves as good a trade-off as I think it does.
However for many years we blindly accepted very large increases in how easy it was to get a patent without substantive debate, and there is now substantial evidence that this has been a bad thing. So it seems to me that it shouldn't be hard to improve on the current state, and I think my proposal would be an improvement.
Finally I have to say that I don't understand what you mean by "presumption of validity". The way things work now is that if IBM wants me to enter into a cross-licensing arrangements, we both know that they can threaten me with a large stack of patents. We both know that most of those patents won't stand up in court, but fighting it will impose serious costs on me and they are likely to get me on something. So even though we both presume the patents are invalid, the threat is still good.
How would you change that dynamic? If your idea is that they spend their money to validate their patent before I spend a dime, how will we know it has been validated to my satisfaction? In theory that kind of validation is the job of the patent office. However regulatory capture has made that review a joke, and would eventually eventually ruin any other level of review you could add. But if I have to spend money in the process of getting the patent validated, then IBM still can threaten me as they would today.
I think generally the little-guy versus big-conglomerate isn't a winnable battle; if you "level the playing field" the elephant stomps the mouse, and if you try and give the mouse a hand grenade you usually wind up giving the elephant a nuke. Thus where I'm coming from there's a background assumption that the little guy will always and everywhere be prone to get screwed, and the only sensible discussion is "how many different ways?" and "what're the systemic effects of such-and-such-policy".
Thus in that light switching to a presumption of invalidity isn't a panacea -- and has its own drawbacks, as any "solution" would have -- and is mainly addressed at mitigating the effect of junk patents, which is what your proposal is also aimed at.
In writing my response to your IBM scenario I found what seems to be one of the ways the 18-wheeler would drive through your proposal so I've put it below, before I get to explaining how the IBM scenario plays out under reduced-presumption-of-validity.
Incidentally, one area where your proposal would fail is that the IBM scenario. So you invent something novel (patentable under your regime). For this to be patentable it has to be a nonobvious combination of existing tech that's been around and commercially viable for some duration of time.
Now IBM looks at it and figures out some other components you need to actually implement it and files junk patents on those in order to force you to cross-license. IBM argues:
- the technology needed has been around for however long your proposal requires (or else your patent wouldn't hold)
- the overall product your invention enabled has been commercially viable for as long as required (or else your patent wouldn't hold)
- their patents are thus "nonobvious" (lol) combinations of preexisting technology that solve problems related to bringing to market a technology that for a long time has been commercially viable if brought to market
In theory you can patch this by tweaking the notion of commercially available or solvable to be sufficiently narrow, but in practice that's very hard language to draft in a loophole-minimized fashion; you'd think it ought to be the case that you can set up criteria that'd make it such that "mechanism for transforming lead to gold" ought to be easily recognizable as "unique" and commercially viable and "mechanism for absorbing shock from spontaneous-change-of-weight during transmutation from base metal to gold" isn't (eg: b/c it is only viable as part of a device that itself is commercially viable only due to your recent patent), but the more you start predicating your notion of "commercial viability" on "independent of any other invention" the more you undercut your likelihood of getting a patent at all.
In some ways your proposed criteria makes this worse: the kinda of stupid patents they'd look for are going to be super generic and useless (like the shock-absorber) and thus not sought after until they're needed to try and screw you out of your invention; thus their uselessness works in their favor (they won't be invented yet b/c they're so dumb) and being generic they have a pretty easy time proving commercial viability (b/c shock absorbers already have a lot of uses, and ours is better than others in some way...).
So you wind up falling back on the same-old pretty-useless nonobvious criteria to defend against IBM if they actively seek to encircle your patent with their junk. In theory they would potentially have a much smaller of junk patents laying around but without patches they'd have a much easier time rounding up junk patents once you got your non-junk patent.
OK. The validity thing plays out like this. In the IBM-threat scenario the threat is that IBM has a bunch of junk patents in technologies around whatever it is you patented, so to actually produce a product using your patent you need to get licenses from them or risk being sued into oblivion; they use the threat of that outcome to compel a cross-licensing agreement, and then run off and make the product you were going to make, leaving you in trouble.
Introducing the presumption of invalidity changes that negotiation slightly.
On the one hand, IBM's threats become a lot more empty; if you go ahead and build your device -- IBM's patents notwithstanding -- then they might well sue you but they'd have to prove their BS patents are not-BS before the trial gets very far, and if they're actually BS then they probably can't get them proven not-BS (judges self-select to take directions about stuff like "presumption" very seriously).
On the other hand say IBM goes and makes a product incorporating your invention, and leaves it up to you to go and sue them. Things here are a little less clear, which is why it's not really a panacea (but what is?). It's easy to say something like "if it's really a good patent it'd hold up in court and you'd be fine", but with any change from the status quo predicting how things actually turn out is a little tricky.
So at the margins the lone-wolf / little-guy inventor has a harder time winning an infringement suit b/c they have to prove their patent is invalid; it's thus a systemic tradeoff between far less "bite" for BS/junk patents in exchange for at the margins having some patents wind up practically unenforceable.
The compare/contrast wrt to your proposal is that your proposal leaves patents harder to get -- thereby cutting back on the BS paten threat -- but doesn't touch the strength of issued patents; the presumption of validity tweak is intended to undermine the utility of issued patents and not have too deleterious an effect on strength.
As far as validating your own patent -- if it held up in court already it's known-good. Some variants of this proposal include a notion of patents-plus (essentially, patents subject to extra scrutiny) available for patents undergoing heavier scrutiny; I'm not a fan of that for a number of reasons, but it's another option (essentially pay extra to get more research done and have your patent enjoy stronger presumed strength).
It basically trades where we are now -- too easy to get junk patents and use them to extort money from productive enterprises -- for a setup where the junk-patent-extortioneering becomes much harder, but at the expense of leaving some lone-wolf holders of valid patents less able to make use of their patents then they are under the current situation.
There are some counterbalances you can throw in -- eg, jacking up the infringement penalties => if you DO win against IBM it'll cost them a ton more money, thereby keeping the expected outcome in the same ballpark despite the reduced likelihood of the little guy winning -- but you can't get around the marginal effect of pushing some patents into the unenforceable range.
I tend to think that's probably an improvement over the current situation, but opinions can differ.
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...
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.