From phm@a2e.de Sun, 16 Jul 2000 10:48:01 +0200 (CEST)
Date: Sun, 16 Jul 2000 10:48:01 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] patent reform

> Whether or not the underlying justification for a patent system is the
> promotion of progress, my thinking is that the costs required to
> realize the short-term gains to the eventual patent-holder should be
> borne by the would-be patent holder himself, and not the public at
> large.  The public should not have to pay the costs for an application
> that is denied.  The public should also not have to pay the costs for
> an application that is accepted--if the invention can't even recoup
> the costs of the patent application, I don't see how the public would
> benefit for paying for such applications to be put through the system.

My thinking is that first of all there should be much less patents.
This can be achieved by mobilising forces of self-organisation:

(1) novelty check by competition:
    the PTO no longer performs examinations.  These are done by qualified
    auditing companies who are held liable if later new prior art turns
    up which they haven't found.  The applicant pays the market price for
    the novelty check.  
(2) inventivity check by competition:
    the PTO publishes the "goal of the invention" and the "prior
    art" (as found during the novelty check).  Anyone can then, during
    the next 12 months, submit solutions to the PTO.  All these solutions 
    are then published.  Those who have found the same solution as the
    patent applicant become co-patent-owners.   If there are more than
    3 co-patent-owners, the patent is rejected as non-inventive.  All
    other submitted solutions become prior art, against which
    the patent is measured. 	

I think this would cut the number of patents issued by 99%.

The examination and application costs up to then were all borne by the
applicant.

If a patent got through the two competitions, it is probably a good one
and even worth of protection by public money.  After all we also spend
public money for policing and other efforts needed to protect material
property of individuals.

On the other hand I don't see where public money still has to be spent in
the years after the granting of a patent. Patent fees don't serve to
recoup any public costs.  They serve mainly as an incentive for patent
owners to give up their patent rights once they are no longer industrially
applied and thus bring in no money.  But there are two problems with
license fees

(1) they provide an incentive for patent offices to grant patents
(2) their rationale doesn't work when applied to public-interest patents
    (such as those under GPPL).  It may also force software patent owners
    to exploit patents which otherwise could be held as honorary titles
    only.

-phm 
 





