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> patents, as imperfect as they are, provide an infrastructure for integrating expensive R&D efforts (which don't result in tangible property), into markets, in a way that avoids free-riding Preventing free-riding is just one means to the constitutional end of promoting the useful arts; it's one that imposes tremendous transaction costs on society. Another means to that end is for the law to say to innovators, what you've done here is nice, but your bringing it forward simply doesn't provide enough net societal benefit to warrant legally prohibiting your competitors from copying your work — so if you want to keep whatever competitive advantage your innovativeness gives you, then you'd better keep innovating, because your competitors might be gaining on you. (Pace Satchel Paige [0] and Thomas Jefferson [1].) When a patent is issued, most of the time it's a single, junior civil servant who literally makes legally-binding industrial policy for the entire nation. At a minimum, patent applicants seeking such a private industrial policy should have to do, and document, a thorough prior art search, in the same way that Ph.D. candidates must do and document a literature search for their dissertations. The existing patent examination process is like requiring a Ph.D. candidate's adviser to do the literature search, and requiring the degree to be conferred if the adviser doesn't turn up anything — and of course in the patent world there's always the factor that "the antlike persistency of solicitors has overcome, and I suppose will continue to overcome, the patience of examiners, and there is apparently always but one outcome." [2] A false-positive issuance of a patent has somewhat-greater ramifications for society than a false-positive issuance of a doctorate. [0] "Don't look back. Something might be gaining on you." http://www.satchelpaige.com/quote2.html [1] In a famous 1966 opinion, the Supreme Court, citing Thomas Jefferson, said: "The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society—at odds with the inherent free nature of disclosed ideas—and was not to be freely given. Only inventions and discoveries which furthered human knowledge, and were new and useful, justified the special inducement of a limited private monopoly. Jefferson did not believe in granting patents for small details, obvious improvements, or frivolous devices. His writings evidence his insistence upon a high level of patentability." Graham v. John Deere & Co., 383 U.S. 1, 9 (1966), https://scholar.google.com/scholar_case?case=910565259149730... [2] Lyon v. Boh, 1 F. 2d 48, 50 (S.D.N.Y. 1924) (Hand, L., J.), https://scholar.google.com/scholar_case?case=969659756696519..., rev'd on other grounds, 10 F.2d 30 (2d Cir. 1926), https://scholar.google.com/scholar_case?case=121904095703982... |
The interesting thing to me about this is that it is fundamentally not a legal judgment, but an economic one. I think patent examiners should be required to have some background in economics along with whatever legal training they get (and, of course, their subject matter expertise). Similarly for judges deciding patent cases.
Anyway, as I've posted here on HN occasionally, I think the problem of figuring out at patent application time whether the invention is obvious or not is too hard, particularly for a junior civil servant. Instead I propose that the first step in an infringement proceeding should be for the patentee to supply objective evidence, along the lines of the Graham factors, of nonobviousness. The burden of proof should be on the patentee, and the court should evaluate this evidence on its own, without deferring to the examiner. What do you think of this idea?