What if patent reform were about bringing the patent system more into line with its constitutional goal of "promoting the progress"? What would such patent reforms look like?
Innovation occurs in a feedback loop. Each domain of knowledge is embodied as theory in the minds of a field of scientists or engineers. The domain evolves as the field of experts accepts or rejects contributions to the domain. An individual who learns the domain and has enough contributions to the domain accepted eventually becomes recognized as an expert. Both the domain and the field evolve over time.
The peer review process for scientific literature is an example of an institution that is designed to govern innovation within a domain. In the case of peer review, the goal is to ensure that very little false theory makes it into the literature. Knowledge in domains governed by peer review is considered more reliable because the institution of peer review permits some good contributions to be rejected erroneously in order to avoid bad contributions. In this sense, peer review might be considered a conservative model for promoting innovation.
Notice, however, that the institution of peer review is subject to a serious flaw. Namely, peer review by itself does not specify or provide an institutional mechanism for deciding what members of the field of experts should have the power to accept or reject new contributions. Academic politics ensue.
The patent system, by contrast, is founded upon a more liberal approach to promoting innovation. Under the patent system, the rewards for an innovation are ultimately determined not by a subset of experts in a given field, and not even by a consensus among the entire field. The rewards of the patent system are determined by whether people who are probably not experts at all are willing to pay for the innovation.
The patent system is also more aggressive than the peer review system in the sense that there is not as much concern with false positives. Under the patent system, inventors are encouraged to disclose their work early and often. In fact, it's safer to file a patent application before the invention is reduced to practice because a sale or public use of the invention can trigger a loss of rights.
To be sure, the PTO examines applications for compliance with both formal requirements and substantive law. These examinations include opinions from Examiners (skilled in the relevant domain) on the substantive issues of enablement, novelty, nonobviousness, utility, and so on. But nobody would confuse a patent examination with peer review.
As many people have pointed out in the past, we don't really want the peer review system for patents since many applications are a complete boondoggle -- they're either worthless because there are already better solutions to the same problem or not enough better to justify the additional cost for the average customer. In the case of patents, there is less of a need to filter out the bad disclosures because the claims to such technology are worthless anyway (plus or minus the transactions costs of litigation).
Because under the patent system the market helps perform the function of filtering contributions, the focus of the PTO and of patent examination should be almost entirely upon the requirements of Section 112 -- i.e., upon the requirements of specific, clear claims that are supported by a comprehensive and clear disclosure.
Notice that this is already how the patent system functions with respect to drugs. If you want to market or sell a new drug, you can look it up in the Orange Book and see whether somebody has already patented it. Examiners in this domain are also sticklers for enablement, requiring multiple examples when the enablement is in question. There aren't many successful challenges to infringement or validity in the drug domain.
In improving disclosures and claims, there are several ways in which the patent system might be improved by reflection upon comparison to and constrast with the system of peer review. By comparison, the peer review system is better at enforcing a social norm among scholars that prior publications must be read and cited as part of any offering of a purportedly new contribution. Scholars who fail to comply risk being labeled dilettantes or cranks. These norms are quite effective at reducing the amount of redundant work in the academy.
From a social perspective, time and money are wasted whenever more than one company invests in producing the exact same invention. Multiple inventions cannot always be avoided -- sometimes new tools or information will suddenly make multiple inventions inenvitable. But at least the norm should be that engineers and scientists should consult the literature before spending time and money (either theirs or another's) on inventing.
There are two ways that the patent system could put teeth into this requirement. First, inventors ought to be required to conduct a prior art search and explain how their work is different from the prior art. That's the quid pro quo for the second -- that the penalties for infringers who independently invent should be higher. Yes, you read that right -- higher.
The conventional wisdom among many in patent law right now is that independent invention should be a defense to patent infrigement because the patents offered no contribution to the infringer's independent work. The conventional wisdom is not wrong in that under our current system, patents indeed offer no benefits to the independent inventor as a source of knowledge. What the conventional wisdom ignores is that society loses out whenever two or more companies spend money inventing the same thing. The patent system (with some reforms) is uniquely well-suited to avoid that waste.
There is another meaningful patent reform that is revealed by contrasting the patent system with the peer review system. The patent system, unlike the peer review system, can provide the benefit of market prices to help in identifying valuable contributions. Paradoxically, that information is not available to the public. Whereas the PTO could be a clearinghouse for information about the market value of inventions, it is instead merely a recording office. Disclosing the details of transactions involving patents should be part of the quid pro quo for patenting. Market price is the most compact indicator of the value of an invention to society, and both buyers and sellers would benefit from that information being public.
Market prices are not a perfect indicator of the value of a contribution. (See the debate over FAS 157 and mark-to-market accounting.) But they're much better than any alternative now available. Liquidity in patent rights is not going to improve significantly until price information is readily available to any (even casually) interested buyer because without that information being public, the transactions costs will always be a function of the legal fees associated with doing diligence on a portfolio. These legal fees right now are redundantly incurred by potential buyers.
Under the current system, the PTO is nothing more than a quick and dirty peer review. Given the dysfunctions that result, it's understandable that experts in fields that find nothing valuable in patent disclosures would feel cheated by patentee-inventors who fail to convince investors and business people to help them commercialize an invention. It's much easier to convince an Examiner to issue a patent on an idea than it is to start a company and bring it to customers. On the other hand, patentee-inventors have a right to complain about infringers who are breaking the law.
Unfortunately, given the direction that reform seems headed, it seems likely that we are moving towards a system in which patents are irrelevant to most fields. Inventors have no incentive to disclose; companies have no incentive to read their disclosures. The point of this post is to explain that it doesn't have to be that way. Just as the peer review sysetm provides the incentive of recognition, the patent sysetm could provide the incentives of reward. No grant administration committee can compete with the market in putting an accurate price tag on new inventions.
As a final note, it seems to me that property rights and their occasional inefficiencies (in the form of holdups) are a necessary evil in encouraging incumbents to spend the time and money reviewing published patent applications and issued patents to avoid redundant R&D expenditures. The economies of scale to litigating damages are too steep for small entities to get a seat at the bargaining table. Without the big stick of an injunction, what incentive do would-be infringers have to review patents?
I want to emphasize on the other hand that small entities and independent inventors who cannot make their inventions relevant to incumbents through better disclosures and careful distinctions from the prior art should not expect to get anything for their work. Work that cannot be easily incorporated into product development may be beautiful in some poetic or mathematical sense. But the patent system has nothing to say about beauty except to the extent that it increases profits.
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