Pondering Patents…

There has been alot of discussion about Patents recently, triggered partly by the IBM “open”patent announcement, Charles posted, as did Brad and  Jason.  There was a clash with  a Harvard Law Prof,  Jim Moore.  I’ll leave you to figure out who is winning.

My small contribution to the Patent debate is to split the issue. Is the problem with Patent Law itself, or with the execution and administration of the law?

It is good to look back in history. We might learn stuff.

It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented  monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts.

U.S. Supreme Court, Atlantic Works v Brady, 1882

I found this quote in a paper written by Andrés Guadamuz González, a Law academic at Edinburgh University. ( I met him at the Geek law conference recently btw he has a super blog) The paper is worth reading, as it provides an interesting summary of the software IP issues here in good old europe. The postion is different from the US, but also far from ideal.

Like Andres, I found this decision  about a video game really really dumb.  (It is a European patent decision) Basically, someone has managed to patent passing the ball in a computer game. 

said guide displaying means further displays a pass guide mark (G3) accompanying another player character (P2) which belongs to the same team as said player character (P1) keeping said game medium (B) and to which said game medium (B) can most easily be passed from said player character (P1) keeping said game medium (B),”

The mind boggles. (In defence, perhaps for the English football team, given last weekend’s performance, passing is something new and non-obvious?)

My simplisitic view is that patents should:

1. Involve a much more detailed assessment of the prior art.
2. Clearer proof and burden of non-obviousness.

Patent departments in both the US and Europe are underfunded. This graph, although a few years old, shows the increase in work load in the US patent Office. this trend to has acclerated dramatically as more and more software related ideas have come to the market in the last 10 years or so.


 Charles made a similar point:

– The resource imbalance between industry and the US Patent Office. Industry has a lot more money to spend on patent filing than our government has to review. Currently there are 500,000 patent filings in backlog and that backlog is growing at the rate of 100,000 per year.

– The issue of uniqueness. Today many patents get through the PTO that are of questionable uniqueness. The PTO should filter these out but they’re so heavily outgunned by industry both in staff count, time and domain specific pedigree that it’s difficult to catch many of them. Once a company gets a non-unique patent through the PTO, it takes millions of dollars of litigation to un-ring the bell.

Do the Patent offices attract the right people? Do they earn enough? Are there enough of them? According to this report,  It seems not.

The U.S. Patent and Trademark Office (USPTO) is responsible for issuing U.S. patents that protect new ideas and investments in innovation and creativity.However, recent increases in both the complexity and volume of patent applications have lengthened the time it takes USPTO to process patents (“pendency”) and have raised concerns among intellectual property organizations, patent holders, and others about the quality of the patents that are issued. Over the last 10 years, the number of patent applications filed annually with USPTO has increased 91 percent from about 185,000 in 1994 to over 350,000 in 2004. USPTO’s resources have not kept pace with the rising number and complexity of patent applications it must review. Moreover, at times, USPTO officials acknowledge they have had difficulty competing with the private sector to attract and retain staff with the high degree of scientific, technical, and legal knowledge required to be patent examiners. To help the agency address these challenges, Congress passed a law requiring USPTO to improve patent quality, implement electronic government

The report is worth a read, as it highlights the challenges and progress that USPTO is and isn’t making…

Geeklawyer (Another good law blog — blawg) mentioned a similar thing when discussing the Blackberry case.

The adverse policy implications of patents are often rather hard to communicate to the public. The appalling state of the American Patent Office is generally of interest to no-one but digital rights activists patentees and their lawyers. The Blackberry debacle brings this into profound relief. News coverage seems to consist of large numbers of people all repeating the theme: “My life depends on this. If I can’t get my emails I’m in real trouble. This could be a personal disaster“.

Geeklawyer suspects that if you told these people that they are in this position because of a weak patent examination procedure caused by a combination of underfunding and policy skewed towards the applicant, as a result of corporate lobbying, they would march to Virginia and torch the place.

Assuming, that is, that someone hasn’t already patented public torchings.

It is easy to criticise bad patents, but that doesn’t mean that we should do away with patents, or necessarily drastically  reform the Patent  law itself. It has worked relatively well over the last 300 years or so.

My simple suggestion.  Fund the patent offices adequately. Attract great people to work in them, and give them the time to adequately assess the prior art.  If this means Patents end up costing more, are harder to get, and there are fewer of them, then so be it. 

Perhaps we need some innovations in Patent fees  somehow linked to the revenue that the patient generates?

I believe good patents stimulate invention and innovation. Bad patents do the opposite. European and US governments should invest more in the patent adminstration process.



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