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Patent Chief Decries Continued Downward Spiral of Patent Quality
Techdirt is reporting that Jon Dudas, head of the US Patent Office, is lamenting the continuing quality drop in patent submissions. Unfortunately, while this problem is finally getting the attention it deserves, the changes being implemented don't seem to be offering the correct solution. "When you set up a system that rewards people for not actually innovating in the market (but just speculating on paper), then of course, you're going to get more of that activity. When you set up a system that rewards those people to massive levels, well out of proportion with their contribution to any product, then of course you're going to get more of that activity. When you set up a system that gives people a full monopoly right that can be used to set up a toll booth on the natural path of innovation, then of course you're going to get more of that activity. When the cost of getting a patent is so much smaller than the potential payoff of suing others with it, then of course you're going to get more of that activity. The fact that Dudas is just noticing this now, while still pushing for changes that will make the problem worse, is a real problem. Patents were only supposed to be used in special cases. The fact that they've become the norm, rather than the exception, is a problem, and it doesn't seem like anyone is seriously looking into fixing that."
Not only is innovation stifled, but it serves to further concentrate wealth, and the power over future wealth, into the hands of fewer and bigger corporations. How about we change it so that only an individual can hold the rights to a patent, without allowing the benefits to accrue to the employer of that individual? And that individual must be the actual creator of the patented idea in question?
I think that we might want to look at the fees we are charging for registering a patent. Perhaps we could implement a fee structure where small inventors pay less than large corporations that can afford more. Also we might want the fees to be based on how unique and original the idea is. Granted, this would be a rather subjective way to assess fees but this is an area where we might want to consider.
Patent fees have simply not kept pace with the value of IP and innovation. If they put them on a pricing schedule that goes up over time, and start them at $300k today, we'll see a dramatic reduction in frivilous patents.
Even more radical would be to place limits on the collectible licensing fees based on the original filing fee. This would encourage some companies to pay more for their patents, in order to create a greater enforcement cap, but would cause them to do so only because they believed the patents to be defensible.
It's fine to condemn frivolous patent trolling, but one important part of the reality is that it is often enormously expensive to implement a genuinely innovative idea. Innovation therefore only goes into production when huge sums of money support the organization behind it, and this is profoundly stifling of individual invention and creativity. Individuals with good ideas often cannot realize any rewards for their ideas except through patenting and litigation, since it is notoriously difficult for a individual inventor or innovator to secure a licensing agreement with a producer ahead of the fact. In absence of that option, post-facto licensing in the form of patent lawsuits is the only alternative. It sucks, but that's the way it is. If large companies were more willing to honestly license good ideas rather than attempt to circvumvent them or win wars of attrition against individuals through protracted litigation, there would be far less need of patent trolling.
A-Bomb
You've got kids dealing with really high-level stuff in a lot of cases. Optics, physics, biotech. No wonder it's easier for companies to push shitty applications through.
We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators.
As we have discussed before, there is an equally significant problem with patent applications that are improperly rejected. Since issued patents enable one to obtain funding to bring new technology to market, this is as least as serious a problem for our society as the more well-known "junk patent" problem.
"He guided enactment of major patent, trademark, and copyright policy, including the 1999 American Inventors Protection Act and the Digital Millennium Copyright Act."
Most patent attorneys consider him unqualified because he had no previous patent experience prior to becoming head of the USPTO.
I've experienced a similar phenomenon in contracting relationships where documentation is dumped in large quantities at the last minute with the intent of overwhelming the reviewing system. Apparently it works at the USPTO as well.
Invenio via vel creo
How about charging proportionally to the full liquid (salary) and equity (stock) income of the CEO, when the patent is to be held by the corporation? Any time the patent is transferred to a new holder, the full fee should be calculated and paid again. I think this stone could kill a few birds. Outrageous executive pay would be penalized, and many small companies and individuals could hold onto more patents.
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Should we even care about small time dreamers anymore? Should the entire process of patent reform have to grind to a halt in order to allow "Joe Inventor", if he exists or indeed ever existed, to still play the patent lottery game? $300,000 dollars per patent seems just fine by me.
Better yet, simply implement a patent tax. It's intellectual "property" after all, so why not tax it?
May the Maths Be with you!
But the bar needs to be raised a bit more than "a bit".
I think patents are far too easy to get, for far too little technical contribution in return. Some prerequisites that need to be (re-)introduced:
-Patent must significantly improve the state of the art. Must also be non-obvious (on the latter, the US Supreme court shows some encouraging tendencies - more of that please))
-Patent applications must contain instructions on how to build the item, at a level where an average engineer can do it.
-No patents for things that lack a technical contribution. In particular, no patents on business methods.
Now if Congress fails to fix the above items, I think the USA would be better off completely without a patent system.
C - the footgun of programming languages
I listened to a lecture given by Eben Moglen on the subject of Patents, with emphasis on software. When he came to the subject of undoing the current system, he mentioned what I thought to be an interesting market approach. Professional engineers are currently expected to develop patents on their creations, and are rewarded for their efforts with bonuses, promotions, etc. The suggestion is to ask companies to reward engineers for every patent they overturn in the process of bringing a product to market. With that, there's now equal market incentive to overturn patents as there is to create new ones, and a company is forced to recognize that the patent system that gives them IP is as a whole a barrier to their future.
I'm sure there's holes in that simple proposal, but I'd be interested to see if that idea can be made workable.
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