[Patents] monopoly/publicity contradiction?

[Steve Probert steve.probert@patent.gov.uk]

Ram'on Garc'ia Fern'andez wrote:
> My disagreement with software patents is the philosophy of most patent
> offices. For me, a patent should be granted only when there the
> research needed for the invention is expensive, so that said research
> would not be posible without the incentive of the monopoly. By
> contrast, the opinion of patent offices seems to be that the inventor
> should somehow have natural right to monopoly. They seem to think
> that the invention is intrinsically a very difficult process and that
> all incentive to it is small (I would like to hear Steve's opinion). 
> By contrast, the invention of a method to solve a problem is part
> of the daily work of a programmer.

I don't really want to express an opinion because I think that would be
wrong for me as a Civil Servant and an official of the Patent Office. 
What I would say is that the patent system has never differentiated
between inventions on the basis of how much the underlying research
cost.  It doesn't even distinguish between those inventions that are
truly valuable and ground-breaking, and those that are [comparatively]
trivial and insignificant. As the law stands, we would not be able to do
so even if we wanted to. Only if an invention is known or obvious can we
raise a legal objection.

To some extent the system should be proportionate and self-regulating -
in industries where the research costs are very high (eg
pharmaceuticals), the patents will be more valuable.  (So licencing
costs will be higher etc.)  OTOH, where the development costs are lower
it will often (but not always, I accept) be cheaper to work around a
patent.  In such cases the patent will be worth less.  In other words
what I am saying is that the value of a twenty year monopoly varies
depending on a number of factors, one of which is the typical cost of
research in the field.  Setting arbitrary thresholds based on research
costs would effectively discriminate against individuals and smaller
companies in favour of the bigger companies who will always spend more
on research.  And who would decide how much money needed to be spent to
make a particular invention?  (I presume you would not be content to
determine the fate of a patent application on the basis of how much was
actually spent.)

> Probably the most important problem here is communication between
> non-programmers (lawyers, patent officials and so on) and programmers.
> It is probably very difficult to convince the former about what kind
> of things are easy for programmers, such as having ideas, and what kind
> of things are difficult and time consuming.

I cannot speak for lawyers, but I can assure you that many Patent
Examiners are programmers themselves.  In my group, all the Patent
Examiners who deal with software applications either write computer
programs in their spare time or have been employed as programmers before
they became patent examiners.  They usually have a pretty good idea
whether something would have been easy or time consuming for a
programmer.  However, they might express the communication problem the
other way around - it's very difficult to persuade programmers that just
because an invention is "easy", does not make it any less patentable.



-- 

Steve Probert
Deputy Director
The Patent Office