A Better Model for Patenting?

As mentioned in an earlier post, I am pretty miffed by the weakened state of the U.S. Patent Office and the IP "land grab" that has ensued. I kind of feel like examiners in the U.S. Patent Office find themselves in the same position as examiners in the NY Department of Buildings, reviewing countless requests for renovation permits in the wake of the Wall Street boom. Patent examiners are being deluged with requests, resulting in an overworked, harried staff that is motivated to move paper instead of giving each application its due. This is not their fault - the system is flawed. But their output impacts us all, with potentially far-reaching and innovation-stifling effects.

One recent suggestion written up in Fortune talks about using a Wikipedia/peer review model to enhance the quality of information considered during the patent examination process:

The issue is that patent applications have tripled in the past two decades, leaving examiners only 20 hours on average to comb through a complex application, research past inventions, and decide whether a patent should be granted.

As a result, critics contend, quality has declined and lucrative patents have been granted for ideas that weren't actually new.

One solution is to let astute outsiders weigh in during the patent-review process, as online encyclopedia Wikipedia does, vastly increasing the information available to the patent examiner.

Wow, what a cool way to harness the power of the collective brain for good. Though writing about a different topic, business development in a Web 2.0 world, Fred Wilson hit on a theme - leveraging good stuff that already exists instead of doing something (that may ultimately be of lesser value) from scratch - that I believe is directly relevant here:

*************************

These days it's often better to just take what's already freely available on the Internet to integrate with other web services. As Caternina explains in this post, the Flickr team didn't really have enough time to focus on the multitude of companies wanting to offer a printing service. Qoop just built one and when Flickr looked at it, it was an easy decision to offer it to their customers.

**************************

The bottom line is that web 2.0 offers a new way to get integration with leading web services and you don't have to waste your time and the time of other busy people trying to craft deals that will probably work out badly anyway. As Caterina says, "Much, much better this way!"

Get the analogy here? There is so much knowledge out there already spread across the increasingly friction-less world, how could a single patent examiner possibly know more than the collective brain of the Internet? It is simply not possible. IBM has already gotten behind this initiative and, along with Microsoft and Hewlett-Packard, is preparing to road-test this concept using a subset of their existing patent portfolios:

Says Dave Kappos, vice president for intellectual-property law at IBM: "It's a very powerful concept because it leverages the enormous capabilities of the entire world of technical talent."

Working with IBM and the Patent Office, Noveck developed a system that will not only permit, for example, an inventor to show that an allegedly new idea is already in practice but also lets reviewers rate one another's submissions, much as they do on eBay (Charts) and Amazon (Charts).

Patent examiners will be given only the ten highest-rated pieces of input, and attempts to sabotage a competitor's application by submitting phony material should theoretically be avoided.

At this point the patenting process is so broken and the stakes are so high that almost any reasonable suggestion should be considered. This patent-with-the-help-of-Wiki idea is just the kind of out-of-the-box thinking we need. The creator of this idea, an NYU Law School professor named Beth Noveck, had the vision to suggest something that seemingly goes against the whole concept of patenting in the first place - I have something unique (I think), I won't tell you what it is for a long time, I am going to protect it, and you can't have it unless you pay me.

However, the unintented consequences of an overworked Patent Office - too many patents granted for ideas that are either too broad or not truly unique - has directly threatened the innovation culture that has made the U.S. an engine for global technology growth. While a little openness may seem anathema to the patenting process, it may be just what we need to align interests, reward true innovation and break the patent log-jam. I am eager to see how the pilot goes. Drastic change is required to get things back on track, and this might be just the ticket.

Comments

[Roger]

Thanks guys for your comments (and your different takes on the problem). Nic, you may be right that we should just trash the current system and start again. Yaser, I completely agree with the argument that frivolous patent lawsuits constitute a tax and place a damper on innovation. We all seem to agree that something needs to be done. Hopefully somebody is listening.

[Nic Fulton]

Patents can be thought of as property, but there is a key difference - there isn't a clear limit the theoretical extent of the supply. In a land-grab there is a limit on the available land. So while more and more patents are being issues, the true value of a any one of them is probably dropping. This creates the ironic situation where those that call for change (i.e. changing the process) might actually end up create massive value to those that got patents issues before the change was put in place - which might be why the rate of application seems to be accelerating. I'd support the view that anyone should be able to get a patent, for a $10 filing fee and a 20 second examination by a patent examiner. This'll reduce the status of all patents to their fuel value of the paper they are printed on and we can all start again... (perhaps using the Wiki approach)

[Yaser Anwar]

I wanted to point out the software industry patent process. Whenever the Patent Office grants a software patent, it grants a right to the patent-holder to devastate innocent businesses. Due to the arcane nature of this technology, the courts find it very difficult to distinguish frivolous software patent lawsuits from legitimate ones. By adopting this stance, the Patent Office has made a dangerous step that could decimate the very industry it wishes to protect.

A remedy would be to change the law to allow a successful defendant to recoup legal costs in patent cases. Until that day arrives, at least the Patent Office can refrain from granting these dubious patents.

No wonder IBM has called for tighter regulation of patents and a review of intellectual property ownership issues in collaborative software development.

There needs to be an investigation of how long patents and copyrights should be granted, to determine an optimum period for promoting intellectual work. It should be noted that although the scale and pace of intellectual work has increased over the past few centuries, the length of protection of intellectual property has not been reduced, but greatly increased.

Why should we care? A new book by Adam Jaffe of Brandeis University and Josh Lerner of Harvard Business School makes a good case for how this is damaging America’s innovation engine—and lays out a plan to fix the problems at the U.S. Patent and Trademark Office. “Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation and Progress, and What to Do About It” (Princeton University Press) argues that frivolous patent lawsuits are creating an unseen tax on technology products, clogging up the legal system and hampering innovation instead of encouraging it.