You highlighted the root of the problem -- 90% (maybe more) of all patents issued should be invalidated based on obviousness "to one skilled in the art", or if not invalidated, then their overly broad claims should be severely curtailed to reflect the actual innovation that the deserves protection.
I remember a patent attorney who had a framed plaque on his wall, a gift from another patent attorney friend & colleague -- a gift intended to convey both humor and praise. It was made to look like the claims section of an actual U.S. patent, and it read:
1. A device consisting of p and n-type semiconductor materials.
The patents are especially useful for startups who might be still far away from their product but might need to protect what they already know. It is a tool to get more fundings as IP have their monetory values. All-in-all unless the inventor is sure that the idea needs to be a trade secret and noone can reverse-engineer to find the idea, one needs some kind of protection on ideas.
You are absolutely correct that the problem is a lack of respect for the system, but it goes even further, there is a lack of respect for the patent itself. Many of the great innovations we use and appreciate in products today were originated, that is invented, by an individual inventor or small company, known as a small entity in patent parlance. In many instances it is impossible for the small entity to keep its invention as a trade secret, particularly when attempting to obtain the backing necessary to commercialize the invention. Without patent protection the rightful owner of the invention has no recourse when some unethical large corporation (is that an oxymoron?) steals the invention. And, why do you think we have all of this negative publicity about patents? Could it be that the large corporations are using secret, and sometimes not so secret, public relations firms to create so called grass roots opposition to patents. Do they do that because they have been found guilty of stealing the intellectual property of others and punished accordingly? If you really want to know how this all works you only need to follow the trail of the innovation from small entity to large corporation. Rarely will you discover that the innovation is legally acquired but you will find that the infringer crys foul when they are brought to justice and blames the patent system.
I understand, when looking at Samsung vs Apple (or most of the other patent battles that make the news today), why someone would question the value of the patent system. I totally get that it needs reform, but let's not loose site an important point. One of the intents here is to level the playing field. A number of these industry giants started with 2 or 3 guys in a garage or some obscure rented lab space. For us old guys, that's was part of the attraction that pulled us into this industry. What if the next "big thing" comes from some unknown inventor from a tiny company? Patents are supposed to protect this guy's IP from the industry "giants". Without some sort of protection, these little guys are simple crushed by the bigger players. Reform may be indicated, but let's not throw out the baby with the bath water.
Not all patents are useless for technological innovation. The problem is that there are far too many patents (easily 90% of all) that should be invalidated based on obviousness. A less direct cure for the problem without invalidating any patents may be by introducing classes of patents. For example:
Class-1: Revolutionary patents. Example: invention of transistor.
Class-2: Innovation patents. Example: invention of microprocessor.
Class-3: Improvement patents. Example: cache in microprocessors.
Class-4: Patents on Design. Example: A certain type of bus protocol.
Class-5: Utility or look-and-feel patents: Example: I-Phone user interface.
Once a patent is classified by the patent office, the patent holder may later ask it to be reclassified (upgraded) based on the change of technology. Who would have thought that the transistor will be revolutionary 60 years ago? Also the class of a patent limits the royalties. For example for a class-5 patent the royalties should be limited to a maximum of 0.02% of sales, for a class-4 patent they may be worth five times as much at 0.1%, and for a class-3 patent at 0.5%, and so on.
Invention will not be reduced without patents. But, innovation (the process of bringing inventions to market) would be significantly curtailed. Without the possibility of market control via patents, the possibility of significant profits would be reduced. This would directly reduce any investment in the invention. Such investments include other people willing to work to assist the inventor as well as capital investments.
For a very different approach to patent problems please see:
I too have argued, tongue in cheek, many times that we should eliminate patents, just to mstimulate a good discussion.
That's too radical, but there are still significant reforms needed to counter a system that is out of whack.
Your suggestion the term of a patent should be reduced from 14-20 year to maybe 2-3 is a good one. But as much as that makes sense for electroncis I suspect it is exactly wrong for pharma.
This is a complex system with diverse stakeholders and actors. It've very hard to find changes that don't have unintended consequences. That can drive one to frustration of saying scrap the whole thing, which is also wrong.
I wish I had some solid suggestions that would roll the ball forward.
Putting aside the need for reform, the author ignores the many values of patents. First, in disclosure of the application (if disclosed) and ultimately the patent, even during the exlusive use of the patent, the patent itself is a valuable tool in research for researchers, competitiors, suppliers, etc.
Second, the author says that many patents are "just engineering." Yes, engineers and scientists (among others) can patent their inventions. Many engineering improvements are patents and certainly should be protected by their owners.
Third, author argues there is no public good to disclosure 15 years (after 14 years) later. NOT TRUE. Tell this to people buying the "generic" versions of drugs after patents expire. The generics save untold millions (billions) for consumers EVERY YEAR. These would not be possible if the science of the drugs and manufacturing were kept secret instead of patented.
Any system (run by the govnerment) is going to be fraught with problems. It doesn't matter if its copyright, patent, or other rights of ownership. But that doesn't make the system useless. It may be imperfect and it may be inefficient, but improving it is the only option, not eliminating it.
Think of the recent cases of the wrong houses being demolitioned by demolition crews. Does this mean we should do away with real property ownership ?
A big barrier to revamping the system is there are already too many patents with the overreach problem. They have to be invalidated en masse before rebooting the patent system. But already too much has been spent on them, which brings up the second barrier, that patent-related costs are rising because it is a good business for those involved. Even USPTO fees went up.
It is clear that the patent system desperately needs to be updated at the very least. The time constraints were created long before the fast product evolution we have now. 20 years is an insanely long patent on most things. I'm not sure we need to dump the process, but it really needs to be re-imagined.
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