Pondering patents

[unixronin]

For no particular reason that I can discern, I found myself thinking about patents and patent law this morning, and thinking about what's wrong with the current system and how to fix it.  I came up with seven basic points that a "good" patent law should cover:

1. Patents must be specific

   You can't file a patent based on vague generalizations and handwavium.  You have to be specific about what you're patenting.  You can, for example, patent a clever new way of laying out the gearsets and shafts in an automatic transmission that lets you get seven forward speeds from the sane number of planetary gearsets you're currently using to get five, or a new tread compound or tire belt construction that gives a tire lower rolling resistance for the same traction and tread life.  But you can't patent the idea of a low-rolling-resistance tire or a seven-speed automatic transmission.

2. Patents must be non-obvious

   Patents are intended to reward innovation ... so innovate.  You can patent a new design of saw tooth that cuts faster with less effort, or a new process for heat-treating a saw blade so that it'll cut longer without dulling or shipping, but it's a bit late to patent the saw.  If someone else invents a clever machine that lets a truck carrying the equipment quickly and efficiently de-ice roads, you can't patent a bigger version of the same machine that de-ices two lanes at a time (or a smaller version that de-ices sidewalks), and you can't patent the idea of using the machine to de-ice airport runways.  (However, you MAY be able to patent an ingenious way of making the mechanism smaller that enables building one small enough to clear sidewalks.)  Similarly, you can't patent something that's just a trivial combination of existing patents.

3. Patents must be tangible

   You have to be able to point to a specific thing you're patenting.  It can be a device, an algorithm, a manufacturing process, a specific use of something, but you can't patent abstract ideas such as business methods ... you can't patent, say, having separate accounts-due and accounts-receivable departments, or keeping your customer information in a CRM database, or building sedans and station wagons on the same line.

4. No patenting Nature's inventions

   You can't patent a tree, a bacterium you found, or a gene you sequenced from someone's DNA.  However, if you developed a new drug from a compound you found in the tree, or you developed a novel medical treatment based on what you learned from studying how that gene operates, you can patent that.

5. No submarine patents

   You can file a preliminary patent on something you haven't worked out all the details of, but you get to file three revisions of your preliminary patent in two years, and if you don't have something solid enough to file a real patent on by then, it's thrown out and you have to start over.  You can't keep on amending and amending the same preliminary patent forever, under the radar, until someone stumbles into it.

6. Use it or lose it

   You can't just sit on a patent and wait for people to infringe it, then litigate.  If you are granted a patent, you must either exercise it, or license it.  If you won't use it yourself, and won't license it, but just sit on it to prevent other people from using it or so that you can sue people who unknowingly infringe it, you lose the patent.  The purpose of patents is to spur innovation, not to suppress it.

   (Addendum:  No-one should ever be penalized for declining to license an invention to an unfriendly foreign power or agents thereof.)

7. Enforcement and disclosure

   It's your responsibility to enforce your patent.  But if you discover that someone is inadvertently infringing your patent, you may not litigate without first making a good-faith effort to license the patent to them.  The other side of the coin is, you may not knowingly withhold discolsure of a patent — if you are engaged in efforts to license a patent that you know imples or requires another patent held by you or a business partner, or if you are trying to submit a patented technology to a standards body (to cite two examples), you must disclose all applicable patents.  If you fail to disclose a patent in such a situation, you must either grant a free license to everyone involved, or you lose the patent.

Thoughts?  Comments?  Did I miss anything major?

Comments

[unixronin.livejournal.com]

at the same time, being forced to license it seems like a bad idea, if no one's willing to pay you what it deserves.

Well, that's why I said "good faith effort". No-one should be able to force you to license your idea for an unreasonable price. But that goes both ways — if you invent a way to make a piston engine get forty percent better fuel economy, and the automakers get together and offer you a one-time payment of $500 for it, you should be able to tell them to blow. But by the same token, if you manage to patent, say, a better seat belt buckle, and proceed to shop the idea around at a price so absurdly inflated that everyone you approach laughs in your face — say, fifty million up front plus $250 per buckle manufactured — you can't then turn around and claim you tried in good faith to license it. Exactly what constitutes a "reasonable good-faith effort" to license a patent would probably have to be decided on a case-by-case basis in the event of a challenge, and would pretty much have to be a matter for the courts.

my brother had severe problems with this with his thesis project, as the only companies taking an active interest in licensing it were saudi and he couldn't consider them because of our government's laws against sharing certain kinds of technology

Good point. You should never be penalized for refusing to license an invention to an unfriendly foreign power or an agent thereof.