Patenting Your Invention: the Ugly Truth – Page 7
What can the patent system do to improve?
Probably not much, because the current system is too comfortable with itself. Fixing the elements that are most wrong would deprive national patent offices of much of their income; and in any case, getting the 180-plus member states of the World Intellectual Property Organization (WIPO) to agree on significant change is likely to be difficult.
Online databases and some procedural rationalisation notwithstanding, the patent system is basically too nineteenth century – almost too Alice in Wonderland – to be fit for purpose now. It hinders rather than helps grassroots innovation. What it aims to do is quite simple and virtuous, but it has become too complex and legalistic, too expensive, too self-serving rather than customer serving, too ineffectual as a means of protection, and too open to manipulation by big companies. (That’s quite apart from the trolls, and the scammers who operate constantly on its fringes.)
Even if you’re rich enough for the cost not to matter, it’s probable that very few patents give value for money.
We can suggest some things the patent system might do to fix itself, though none of these remedies is likely to be adopted any time soon. In no particular order:
• Scrap renewal fees.
• Make patent application more expensive. This would reduce the number of patents, but that would be a good thing because there are far too many of them, especially now that the Chinese are filing at a breathtaking rate. Many patents are for ideas too slight to be considered new technology. They debase the currency.
• Adopt a more rigorous approach to what is and is not patentable. Patenting is moving into areas of bottomless dispute potential, such as gene technology and business methods. Let’s get back to basics. A patent should be a clear, simple recipe for how something is physically made or done. If it results in a battalion of legal experts fighting over its meaning and significance, there is something badly wrong with it.
• Given ever shorter product life-cycles, grant patents for less than 20 years. There is no magic in the number 20. Call it ten, and no renewal fees.
• Make patent offices reconsider what they’re trying to achieve beyond raking in fees. If it’s still the case – according to that 2003 FTC report – that far too many US patents are being granted, USPTO shouldn’t be in business. (There are demands for it to be privatised.) Some might interpret such a high level of inappropriate patenting as fraud.
• Patenting in Europe should be much cheaper and simpler. A single patent should cover all EU countries. No translations beyond the three main procedural languages (English, French and German), no national validation fees and filings, no messing. One patent at one affordable price. This is by no means a new idea and the European Commission wants it to happen. The problem is that all EU states are required to agree and some don’t want to play. The latest attempt came predictably to grief in November 2010 when Spain and Italy vetoed it. Until heads can be knocked together, EU patent cover continues to cost about ten times as much as a US patent. [2013 update: at last, the single European patent seems likely to happen.]
• Why translate at all? If it’s possible to assemble Ikea furniture solely from a set of wordless drawings, it should be possible to present much – perhaps most – patent information the same way. Drawings are already important, and much patent text (apart from the claims) is unnecessary. Even if text is needed, it could be structured in a more uniform and concise way. A strict word limit might work wonders. (EPO has recently struck a deal with Google to machine translate European patents to get costs down. It will be interesting to see how machine translation copes with the often incomprehensible technogarble used in patents.)
• Make patent offices accept more responsibility in return for the fees they charge. At the moment, it’s money for old rope. Fees should include a service that helps the patentee fight infringement. And if a court decides at any time that an examiner has made a bad call in granting a patent, all fees taken for that patent should be repaid.
• Strip patents of their overblown, almost mythic status. Other forms of IP protection can be just as good, if not better. Scepticism about the value of patents is growing among businesses who have to pay for them, but a patent is still regarded as a must-have by others, ranging from bar-room know-alls to bank managers and investors. The patent system is being propped up by ignorance. And that brings us back to the reason for writing this entire diatribe: too much advice to inventors is based on a mistaken assumption that every invention must be patented.