Gelfin, first, thank you for writing such a post. This is EXACTLY what I have been trying to prod out of people. I am not close-minded, and I really just want someone to point out something I haven't considered. That's how I got to where I am now. I used to rail against IP too (more on the copyright side), but through rational conversations with others, my viewpoint has evolved.
Gelfin said:
psxndc
I think some people have been trying, perhaps a little obliquely, to make a very good point about why your own vision may be limited. You're in law school. ... But your observer is criticizing the fact that when you're done you'll have a picture of a festering corpse.
I see the picture, but I don't see a festering corpse. I see it as bacteria reclaiming nutrients as part of an even bigger picture of nature as a whole. And as I said above, it really doesn't have too much to do with law school, it has more to with discussing these issues with others.
Gelfin said:
I've been waiting for you to type a single word, which I haven't seen. You've used the term "monopoly" three or four times in referring to the intent of patents. Never once have you used the term "limited."
The purpose of patents -- really, of all IP laws -- is very specifically not to establish monopolies for the enrichment of the creator. The purpose of IP protection is that society as a whole benefits from innovation.
I sort of said this in a post that got deleted. Sorry.
Gelfin said:
Second, and very importantly, no patent should ever be transferable except in specific cases, such as corporate merger. They must remain with the creator of the patent, whether individual or corporate in nature.
I disagree with this because restraining alienation of property is ver bad thing(tm). I see your reasoning behind it, i.e., patent trolls buy up patents and then extort companies with them, but your solution is drastic. An analogy: you build a house. But a law is passed saying you cannot sell any house you build. That's effectively what, as I understand it, you've suggested here. People, IP lawyers included, know patent trolls are bad and damage the system. I admit, I am currently at a loss how to stop the trolls without gutting the patent system. It's like how do you stop criminals from shooting people without restricting handguns? Well, criminalize the act of shooting someone I guess.
Gelfin said:
Third, and related, in order to render a patent enforceable, a patentholder should be required to demonstrate a good faith effort to develop and market a specific embodiment of the patent. An innovator who files a patent, sits on it, and then sues anyone else who comes near the idea is working counter to society's interest in innovation, not for it. As the patent is not an intrinsic right but a pragmatic one towards the improvement of society, the idle patentholder should lose standing to sue those who act. Note that merely licensing the patent is insufficient to establish good faith in this case. It is neccessary for the patentholder to be invested in the development of the embodiment, with all attendant risks of such investment.
This goes back to me controlling how you use your property. Should I really be able to tell you what to do with the land your house sits on? The benefit to society is not how the person markets the invention, it is the disclosure of the idea. They've already done that by filing and getting a patent. I know the point you're making, that a person shouldn't just get a patent and make money off of lawsuits, but I shouldn't be able to tell you what to do with your land. If you want to grow corn and sell it to whoever is buying (licensing it), that's your perogative. If you don't want to do anything with it at all and just harass trespassers, bully for you. As long as that property becomes public domain after your twenty years, do what you want with it.
Gelfin said:
...the patent office should be imbued with the power to recover its costs plus necessary punitive damages in certain cases where alleged innovators are judged to be attempting to sandbag the system, either burying prior art and/or patenting trivial or obvious innovations. There is presently no disincentive to dishonest use of the patent system, and there certainly should be.
The funny thing is, well sort of funny, is that the patent office gets fees throughout the whole process, so it doesn't really "cost" them anything to examine the patent. As for no disincentive, well, it's a decent amount of money to throw into the system if you end up with no patent. But you are correct that there are no real repercussions if you are acting in bad faith other than you are perjuring (I think) yourself if you intentionally file a bogus patent.
Here's an idea: Currently the patent office does not require you to search for prior art. You only have to disclose what you know about. One idea is to make applicants search for prior art beforehand and to make them distinguish their invention over anything they find. This creates a problem in other areas though if they find another patent because then they become willful infringers which carry larger damages. Suggestions?
Gelfin said:
Fifth, unenforced patents should be subject to the same degradation of protection over time as trademarks and even private real property. Failure to enforce for five years (give or take) should be considered a tacit license.
Not a bad idea. I'd need to think some more about this (or learn more) because this sounds reasonable.
Gelfin said:
Sixth, independent parallel evolution of solutions should weigh extremely heavily in patent enforcement.
hmmm.... there are intereference practices (where two people try to patent the same thing at the same time) which are very very messy, but as for proving copying... well, patent law is not really concerned with copying. I understand your point to be "someone should only infringe if they copy from the patentee" but, to me, that's not the way the system should work.
Gelfin said:
There is at least one major flaw in the patent system for which I have no solution: Evaluations of patentability are contingent on proving negatives, ... Patents must be issued based on overcoming some standard of doubt, a standard which is certainly lowered by increasing burdens and costs of research. Furthermore, it is certainly in the applicant's interest to minimize or disguise these issues, ...
You are correct, it is very difficult if not impossible to prove negatives. But the patent holder is actually encouraged to disclose as much as possible because it makes ther patent stronger. If the examiner has consider only X and Y references, then that is all the art that the patent is really valid over. if you find Z reference, well then you'll incur the cost of a lawsuit to figure that out. If the patent holder had disclosed X, Y, Z, A, B, C, then the patent is valid over all of those and will be much harder to defeat and an infringer will more likely settle or take a license.
Gelfin said:
However, I remain convinced that it is important to reconsider our intellectual property laws in terms of fulfilling those laws' understood promise to society.
I completely agree. Only by examining our system can we really try to repair it. I am all for it which is why I think your post is a great one. You bring up very valid, rational concerns and I've done what I can to respond. That said, you've brought up other issues, I, as an attorney-to-be, need to keep thinking about.
Gelfin said:
The attempt to give intellectual property equivalent legal protection to real property is both misguided and detrimental.
Well, I just flat out disagree with this.
Thanks again for your repsonse.
-p-
