There’s no hope of reform coming from companies adopting different behavior. Companies are merely playing the game with the broken rules presented to them. Reform must come from lawmakers who restructure the rules of the patent office.
More is not better. In fact, fewer is better. The current test of non-obviousness should be overhauled so that it is actually effective in testing whether something is obvious. That test is supposed to be measured by whether a person of average skill working in the field would think it’s obvious, so I propose that we actually ask them!
Patents need peer review. The current oversight is for patents to go to court and for judges to decide what stands, but as we’ve seen in the Sega case, there is far too much incentive to keep these cases out of court. Oversight should come before the patent is awarded, during a public review period during which anyone can point out the fallacies of pending patents. This would mean that anyone who applies for a patent and is rejected would not be able to keep their idea as a trade secret.
Some would call this a problem, but I think it’s worth it on the whole. Legitimate patent applicants would have to carefully consider the risks of applying, but a public review would hopefully help demonstrate that legitimate patents are, in fact, legitimate. Public review would also eviscerate what I’m guessing is the majority of patent applications, and rightly so. Reducing the number of patents granted each year by 90% sounds about right. And while we’re at it, only certain types of patents should have a twenty-year reach.
After a patent is granted, more oversight is needed as well. Currently, the only recourse is the courts, but a firm (or individual) should be able to challenge a new patent and get re-review, perhaps within six months of the patent’s approval. The fees from these challenges can go towards the funding of the Patent Office, which will admittedly need more federal funding as well, once the approval rate of patents is slashed by 90%.
Open review of patents does have problems, but secret review of patents with no appeal has already thoroughly demonstrated itself to be broken. We could do worse than a little more oversight and transparency in decision-making.
"Other people have invented almost everything already. It becomes more and more dffficult every day."
—Henrik Ibsen, 'The Wild Duck'.
The joke’s on Commissioner Duell, because he should have realized that amazing inventions like 1-Click buy and the method for measuring breasts with a tape measure were yet to be patented in his time.
The article that started it all.
Very good article. Note that I took the images and captions of the two silly patents from this site. Maybe this is bad form, but the stuff is public record, so I don’t know.
Source that talks about the paradox of getting a patent based on a particular implementation, but then being able to stop all other implementations in court.