The Solution to the Patent Problem

Today I realized that the solution to the failing patent law system in the US and abroad is not to eliminate patents, or prevent patents in certain areas. Nor is it to have more or better patent examiners, or stricter guidelines for prior art analysis and appeals. No, the solution is to keep the current patent system with one big change: Limit the lifetime of a patent to 5 years instead of 20 years. Secondly limit the lifetime of first continuation patents to 4 years each. Thirdly any further successive continuation patents have a lifetime of 1 year less than the patent continuation they continue. Five years is ample time in this economy for a company to make use of the advantages that a patent gives them in gaining a market foothold. It is fair that the party who invests to develop something should be given the first right to capitalize on it. But after 5 years they should no longer have that protection. The theory is that if they were successful within that 5 year grace period in which they had exclusive rights to the patent, then they will have gained enough competitive advantage and scale to continue being successful without having exclusivity. If they haven't made it to that point in 5 years, then they shouldn't have further exclusivity. This is a better form of natural selection of companies -- it weeds out those organizations that were not successful in monetizing a patent and frees up the knowledge encapsulated by that patent for other parties to utilize. This has the effect of facilitating progress by rewarding successful organizations yet preventing anyone from limiting the spread of knowledge. When the patent system was created the world was slower; 20 years was the time it took to do anything big. Today that time is down to 3 years. So 5 years is generous protection. Another benefit of cutting the lifetime of patents is that even if a bad patent is granted, or a patent is simply taken out to block others, the negative impact of that mistake on society, technological progress and the economy can be quickly expired. The problem is not the idea of intellectual property. Indeed intellectual property rights provide necesssary protection which makes it safe for parties to invest in new ideas. In any ecosystem there must be a way for participants in that ecosystem to compete for resources. But if the ecosystem is structured such that participants can gain unfair advantage that is based not on their adaptive success but rather on an artificial advantage granted from outside the system, this has the effect of amplifying the large players and dampening the small players. In other words such an ecosystem tends to destroy diversity. The diversity of companies, the diversity of ideas, is just as important to the health, prosperity and evolution of societies and economies as biodiversity is to biospheres. Our present patent system promotes cancerous companies when it should be killing them off. Cutting the patent lifetime to 5 years is just what is needed. Even the most malignant companies simply cannot continue to harm the system after 5 years. Ideas are still generally useful in 5 years, at least at this time in history. Thus my proposal strikes a new and healthier balance between intellectual property control and the freedom of knowledge. This is good for society in general, and that is good for the global economy.

Comments

[canija]

The net of these two are an end to "submarine patents" where someone files and delays until the market develops to unleash it

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http://www.juegos2005.com/

[Frans Groenendijk]

I appreciate your approach. But I wonder who you are addressing.
(Very interesting site; still)

[Tom Otvos]

If "method patents" are allowed to continue to exist, then perhaps the sliding time scale solution should be reversed: 1 year, to prove that it is not ridiculous or maliciously filed, two years continuation, then perhaps another two years continuation after that.

And I also agree with the other comment that the term should be domain-specific, which then leads me to the observation: aren't all patents pretty much "not broken" with the exception of method patents? And if so, shouldn't the right answer be to simply close that door and be done with it?

[Dave McComb]

Agree completely, with a few editorial points:

I think the term of a patent should be related to its field. I happen to think that the 20 year patent is about right for Pharmaceauticals (where it takes 10 years and nearly a $billion to get drugs to market). Few would go to the trouble if it were to be commoditized before approval was granted. While it causes inflated prices for the 10 effective years, it means drugs that would not have otherwise been availbale become commodities when the patent expires. (And no, I'm not associated with any drug companies).

Manufacturing, I'm not sure, perhaps a middle ground, maybe 10 years.

Software and these goofy method patents, 5 years is plenty as you say.

There are two changes already in place that are going to make things better:
1) the patent term now runs from first filing not award date
2) patents are publicly disclosed on filing not award

The net of these two are an end to "submarine patents" where someone files and delays until the market develops to unleash it. (Eckert and Mauchly got a general patent on electronic computers from their work on Eniac in 1946. The patent was issued in the mid 70's!)

Finally I think one more change would be to create some sort of AI system, based probably on TRIZ, that would allow inventors or examiners to map the design space and determine the actual size of the claim domain (if any)