Thursday, February 09, 2006

Fixing the patent system part 3

Part One

The US Patent system is a mess, it is time to fix it.

Free software advocates frequently argue that software patents should be excluded completely. I don't think that is a sustainable line of argument, if software is to be excluded then why not other types of invention? Its a slippery slope that quickly leads to the argument that the patent system should be abandoned altogether. This is not necessarily an invalid argument, the US patent system today is certainly doing more harm than good but an argument for abolition is certain to fail.

It is hard to think of an example of a software innovation that is the result of the patent system. Even the RSA encryption algorithm, a rare example of a justifiable software patent and one of the most profitable software patents ever was patented as an afterthought. This is not the case with biotechnology patents where billions of research dollars are spent each year to discover patentable drugs. Take away the patents and you take away the research.

Patents are a valid incentive for innovative research. The European patent system works without causing the major problems that the US patent office has.

"The USPTO acts as if it were a modern day land office"

From the beginning the USPTO has seemed to have a rather different idea about the purpose of patents. European patent law is very clear: the purpose of patents law is to benefit society by encouraging innovation. The USPTO pays lip service to this objective but its actions suggest that its real goal is to create rights to intellectual property.

The difference is a very important one. Issuing junk patents does nothing to further innovation but it does ensure that no part of the technology frontier will be wanting for a private owner.

The USPTO acts as if it were a modern day land office: it is in the business of creating private rights to intellectual property. And like the Victorian land office it is not particularly interested in preserving property rights in the public commons.

Other patent offices do not cause the same amount of problems because they apply three very simple rules to patent applications. First to be awarded a patent you have to actually invent something. Second you have to invent something significant. Third your patent only covers the thing you actually invented.

According to the USPTO it observes these basic rules as well. The challenge is to make it apply them in practice.

Take the idea that you have to actually invent something. Every other patent office follows the rule that you have to file the invention before its first publication. This is an important safeguard against fraud. Inexplicably the USPTO allows an inventor up to a year to file their patent which in effect allows the applicant to backdate their purported invention date by a year.

This provides the inventor willing to perjure themselves (and there are many) a near effortless means of getting a valuable patent. Simply monitor the mailing list of one or more Internet standards working groups and whenever you see an interesting idea described that might make it into the standard, submit a patent claim. After the patent is issued you can even sue the real inventor for royalties.

Sound far fetched? Not at all, I have seen it done more than once. Even if you know this is the game being played it will cost you over a million dollars to prove it.

Manifesto Point: End backdating of patent claims any prior art published at any time before the description of that particular claim is filled invalidates the claim.

Another point of departure is the idea that you have to actually invent something significant. The USPTO claims that this is a requirement in practice however it regularly approves 'inventions' which are nothing of the sort.

Most of the Internet 'business model' patents currently causing so much difficulty consist of nothing more than a description of a business model that has been in place for several decades at least combined with 'do it on the Web'. According to the USPTO this constitutes a non-obvious novel invention.

To add insult to injury the 'doctrine of equivalents' means that the scope of an existing patent is effectively extended to include this type of trivial substitution. It is not in general possible to circumvent a patent that covers a way to broadcast music on digital radio and digital TV by using the idea on the Internet. So why should an idea that would be unpatentable on digital radio or digital TV because it is not novel in any way become patentable by taking it to the Internet?

Manifesto Point: Mere combination of obvious idea should not be patentable. If the combination of ideas would be covered by the doctrine of equivalents it should not be patentable.

The third major problem created by the USPTO is the granting of broad patents on the basis of almost no intellectual effort whatsoever.

Although this is a big problem in the software field it is likely to become an even larger problem in the field of medicine. If steps are not taken soon the US may find that a significant proportion of medical research is taken offshore simply to avoid overly broad patents that should never have been granted.

The main area where this problem is seen is in the granting of 'DNA patents'. According to patent law a patent on a human DNA sequence should be a contradiction in terms. Human DNA sequences are physical observations and physical observations are explicitly excluded from patentability.

The loophole that the DNA patent barons have found is to file patents that lay claim to every imaginable application of a DNA sequence the minute it is identified. It does not matter that the 'inventor' may not have the slighetest clue what the sequence actually does. If they enumerate every possible use then they are almost certain to list the valid ones.

The result is vast quantities of patents that disclose nothing of value whatsoever. The DNA sequences described would have been found without the 'assistence' of the money grasping 'inventor'. The list of 'applications' is utterly useless because it is utterly indiscriminate.

A similar problem is seen in software patents. It is not unusual to find a patent that consists of hundreds of pages, claim after claim. The basic strategy here is to take one or two simple ideas and enumerate every imaginable variation of them. Even though one or two claims may be invalidated by prior art the patent holder effectively gets title to everything else.

Manifesto Point: The scope of a patent should only cover what was actually invented

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