Here is another article out today, from Peter Cohan, arguing that the US patent system should be scrapped. Are we are well past being able to reform it? Cohan’s five reasons don’t include regulatory capture, market inefficiencies, the march to over-strong rights by the interested parties, and the fueling of an “arms race” that has little to do with innovation, as Boldrin and Levine argue in their draft paper. Nor does Cohan worry the political unlikelihood of reform as a reason to scrap the patent system.
Folks have growled about patents in software and genes for some time, without much happening. Instead, the public domain has continued to vanish, for patent and copyright alike. It would seem that allowing a broad range of “inventions” that really ought not be patentable is aligned with the growing sense of stagnation in our research and innovation initiatives. Yes, the premises are all grand–cures and new energy and better spam filters–but the underlying work just isn’t there. If patents serve more a jockeying for position among major corporate players and less a chance for independent inventors to build an idea into practice, then is there a reason, if not to scrap the patent system, then to change how patent owners deal with products involving multiple inventions?
As “inventions” in software slip toward “expression”–essentially software algorithms are updated player piano rolls that allow us to communicate with machines–patent practice needs a working requirement by claim, tied to application-specific implementations. That is, one can hold a general patent, but should not have standing to enforce it across all patent claims unless the patent owner is working the patent across all those claims. Instead of infringement in such cases, one should be looking at a mechanical royalty or a kind of patent fair use.
In some ways, that’s what “prior user rights” aims to do, but that is only about chronology and is limited to each entity without rights to license others. What needs to happen doesn’t involve only who is first to use prior to a patent application being filed, but rather who is first to practice an invention for a given application. Like trademark, “at least as early as” ought to count for something in preserving a right to practice (and license that practice to others), regardless of the patent office paperwork. If one went this way, patent owners would have to file an affidavit of use, as is done in trademark law, and it would be this affidavit that would establish the scope of the patent holder’s standing to exclude others. One could still claim a reasonable royalty, but not via an infringement action.
For all that, I don’t see how Cohan’s argument that scrapping the patent system would have helped the developer of what became Siri. Say he didn’t have a patent, and Nuance also didn’t have a patent (because the patent system was scapped), then would Apple need to pay either of them? What would be the dynamic for an independent inventor in such a case? The happy satisfaction of seeing one’s creative, new work used by big corporations? I’m sure that is something of a warm feeling, but what about attribution? recognition? maybe even a bit of gold?
If in an innovation system we decide that the inventors really don’t matter, either for attribution, honor, or money, then are we being all that bright about it? Is there a limit to inventor disregard? That’s a problem in the university IP policy domain, to be sure, as university administrators make the case that faculty have to invent anyway, and it is their duty, somehow, to sign over their creative work to administrators who will thumb about with inventions seeking to make a buck.
What is the concept regarding how new things come about, then? That inventors will have to do it anyway, and it’s better just to be able to take stuff from them when they do, and they are sniveling and selfish when they object? That would appear to be a problem deep in the heart of “open” advocacy. The issue may then not be all-or-none, but rather one of selectively weakening the opportunities for folks to exploit the patent system as rights speculators rather than as technology “progressors.” It is not holding a patent claim, but rather working it by making and using, that should establish the basis–and scope–for the right to exclude.