| I'd say you're slightly misreading the point of the patent system; I'd argue the underlying "point" is what it says it is in the constitution -- to promote the progress of the useful arts + sciences -- which isn't exactly the same thing as "come up with ideas that people wouldn't otherwise come up with". EG: one aspect of the patent system is that it promotes invention of work-around, "me-too" inventions to get around patent restrictions (eg: PNG vs. GIF, for a computer example). I'd argue that's more often a bug than a feature: worthwhile inventions would happen anyways, and engineering-around-a-known-solution is far more often a deadweight loss than a benefit to the economy as a whole; there many others (mainly members of the patent bar) that'd argue that such work-arounds are a feature, as they promote "new invention" that otherwise wouldn't happen (since you'd just use the known-good solution). I'm sort of assuming you usually see this "my way" on this issue; if you do, then framing it as "think of stuff that wouldn't be invented otherwise" doesn't give you much to stand on (as clearly most workarounds wouldn't be thought of without the patent system...). Sticking with the promotion-of-progress language gives you a much firmer frame for your arguments. Your framing also is making you overlook the importance of disclosure in the patent system; it's not an accident that a patent not only describes what it does (separate alumina from bauxite) but also how it works (supposedly in enough detail that someone else could implement the invention by reading the patent, though in practice there's a strong incentive to obfuscate that as much as you can get away with). The argument here is that this promotes the progress of the useful arts and sciences as it makes the knowledge underlying a particular invention available essentially immediately -- as soon as the filer rushes to the patent office -- allowing work on derivative inventions to start immediately, thereby increasing the rate at which new ideas are come-up-with, etc. So while on the one hand you're kind-of right -- patents that have lots of simultaneous inventors probably are too obvious to be useful -- you've not addressed the real thrust of the delay issue (which I admittedly could have made clearer): - for "good" patents in your system there's an incentive to wait as long as possible (as the longer you wait the greater the odds your patent is valid); this'd be especially true for the ones that don't have much to worry about from co-filers b/c they're legit inventions - this means that the rate of disclosure of the genuinely-novel inventions would be expected to go down, as ceteris paribus there's more incentive to delay filing and therefore delay disclosure of the underlying ideas - so the calculation what is the effect on the rate of progress of the useful arts + sciences under your proposal is roughly ("increased progress due to lack of bogus patents no longer gumming up the works") - ("reduced rate of disclosure of truly novel inventions"), and imho the latter term would be quite substantial and would need more arguments to justify it The simpler hack to get what you want is removing the presumption of validity (too lazy to check if I mentioned it already or not); this would change the patent-infringement workflow from: - file lawsuit; patents assumed valid until (or if) defendant successfully challenges every relevant claim in every relevant patent to: - file lawsuit; filer must successfully "validate" each relevant claim in every relevant patent, and only then will proof of infringement imply damages are merited ...and this can be phased in in ways that'd not be crazily disruptive (eg: phased introduction and/or the presumption of (in)validity is on a per-area basis, so pharma is presumed valid but not software). |
I agree with you on the intent of the design of the patent system. However in a world filled with overbroad junk patents, where accidental infringement is much better than willful infringement, there are real incentives for innovative people to _not_ read patents. Because reading them opens you up to liability without teaching you anything you couldn't have thought of on your own.
As for the cost of waiting, you are right that the incentive to wait is an inefficiency in my proposal. However the aim here is to achieve a good trade-off. Obviously more detailed analysis is required to find whether it achieves as good a trade-off as I think it does.
However for many years we blindly accepted very large increases in how easy it was to get a patent without substantive debate, and there is now substantial evidence that this has been a bad thing. So it seems to me that it shouldn't be hard to improve on the current state, and I think my proposal would be an improvement.
Finally I have to say that I don't understand what you mean by "presumption of validity". The way things work now is that if IBM wants me to enter into a cross-licensing arrangements, we both know that they can threaten me with a large stack of patents. We both know that most of those patents won't stand up in court, but fighting it will impose serious costs on me and they are likely to get me on something. So even though we both presume the patents are invalid, the threat is still good.
How would you change that dynamic? If your idea is that they spend their money to validate their patent before I spend a dime, how will we know it has been validated to my satisfaction? In theory that kind of validation is the job of the patent office. However regulatory capture has made that review a joke, and would eventually eventually ruin any other level of review you could add. But if I have to spend money in the process of getting the patent validated, then IBM still can threaten me as they would today.