OK, so most of us agree that the patent system is a mess. It’s overloaded with poor quality and questionable patents, it’s too complex and cumbersome, and it doesn’t actually protect anything unless you have extremely deep pockets.
That’s the moaning, but what about the mending? Here, for what they’re worth – and as they’re the product of not more than about an hour’s thought, I’ll happy negotiate on their value – are my thoughts on what can be done to change the patent system.
What it needs is revolutionising, not tinkering with à la Hargreaves and others. So:
The bones of it
Original ideas are ten a penny. Anyone can sit down for a couple of hours and come up with several. Having an idea isn’t the hard part. So my new patent system will not protect ideas at all. Shock horror.
An immediate benefit will be a drastically reduced number of patent applications. There will be far less dead wood in the patent system because a lot of it won’t get there in the first place.
Instead of protecting the idea, my new patent system will protect only the work done on the idea. This could be done at two levels:
1 A completed work patent. (Not a great name but descriptive.) Valid for 10 years. No renewal fees. ‘Completed work’ could be either a market-ready product or a prototype ready for licensing – the applicant would choose which to go for. The application would include evidence of dates of origin and evidence of development. It would also include claims for novelty – but with the benefit that they can be final, accurate and demonstrable.
2 An incomplete work patent. A sort of consolation patent for ideas substantially developed, but abandoned or set aside for some reason. (Inventor running out of money isn’t too far fetched.) Valid for perhaps five years. Patent protection would allow it to be resurrected during that five-year period, giving it a chance to progress and upgrade to ‘completed work’ status.
The result should be a slimmed down patent system containing patents of higher quality because the idea has already been ‘worked’ to a significant degree. The emphasis will have shifted from invention to innovation. From giving birth to upbringing.
•…Patents would be more in line with copyright, which primarily protects completed work.
•…Workloads on patent offices should reduce, so application-to-grant periods should be shorter.
•…Litigation costs ought to be a lot lower. Settlement should be easier as courts will look at solid evidence of work done and when done, and not have to argue excruciatingly fine points of claims.
•…Infringement ought to be much more clear cut. For example, it might be difficult for a reverse engineer to produce evidence of prior development work.
•…It ought to be easier for a small business with a prototype or product to defend itself against a bigger company, because the evidence requirement would be much simpler. Evidence would either be plainly there or plainly not there – a much more transparent and rational state of affairs than we seem to have at present.
It could be argued that inventors less able to develop ideas quickly might be at a disadvantage. But if they’re able to develop them at all, the evidence will be there, which in many cases will be to their advantage. And let’s face it, private inventors are at several pretty hefty disadvantages under the present system, so the philosophical position ought to be that fewer rather than no disadvantages is still a win for them.
And that’s it so far. It may need a few more coats of paint on it, but it’s workable.