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Harm caused by all types of patents

Revision as of 23:46, 31 May 2009 by The Mad Hatter (talk | contribs) (Major update of page, detail added about patentability)

Some people think that the entire patent system should be done away with.

Why patents as a whole are the problem

A study a while back by Groklaw contributor Wayne aka "The Mad Hatter", which involved reading several hundred patent applications, which was mentioned in a post. In this study, he found only one valid patent.[1] The patents checked were patents that:

a) He had an interest in. b) Were in a field he had expertise in.

None of the patents that he understood met the US Patent Office regulations for issuance of a patent, according to his understanding of those regulations. There were a couple of patents, about 1% of the total, which he noted that he couldn't understand. He noted that the odds of reaching similar numbers with another batch of patents was, in his estimation, quite high.

Proposal to repeat the experiment

Wayne has proposed: "As a result, I propose that we look into a cross section of patents. I will evaluate those that I can for validity, and I'd like to ask others to do the same. While this will be ad-hoc, by using a larger sample size, we will be able to further prove that there are issues with Patents in general." (This can be discussed on Talk:Should the whole patent system be axed)

To do this, it is necessary to look at the conditions for patentability, specifically with reference to the US Patent Office, since many of the problems appear to stem from the United States, either through patents issued there which would not be issued in other jurisdictions (Business Method Patents not Legal in Canada), or through attempts to export the American Patent Regime to other states (Europe Under Patent Siege - 1/2 way down page). Specifically the USPTO requires:

   * be of patentable subject matter, ie a kind of subject-matter that is eligible for patent protection,
   * be novel (i.e. at least some aspect of it must be new)
   * be non-obvious (in United States patent law); and
   * be useful (in U.S. patent law).

The text is from Wikipedia, references to the EU Patent Office were removed since we are not considering it at this time. Further explanation of these clauses is below:

1) The invention must be something that the Patent Office can legally issue a patent for, this is defined in the regulations, but generally it is taken to be a physical invention. There is considerable argument at the present time about "Business Method" patents, which according to a recent court ruling are disallowed, however it is being argued by Gene Quinn that the only requirement is that a computer be included in the application for the patent to be issued. Patent lawyers make money from filing patent applications, and herding them through the process, and thus have an interest in the range of patentability being as wide as possible. This may not be in the best interests of society as a whole.

2 The invention must be NOVEL. In industry this is known as the "DUH" clause. One example is the KSR vs Teleflex case, where the patent in question covered the shape of a lever. In effect the invention must not have been previously invented. This is not simple however, as the rules disallow certain types of evidence, so it is possible to patent something that has been in general use for years prior to the patent being applied for.

3) Non-Obvious means that the idea shouldn't be Obvious. Simple modifications of existing devices are not allowed, nor are combinations of existing components. An example would be the motorcycle. If an automobile already exists, taking the engine from an automobile and mounting it on a bicycle frame to make a motorcycle will not be patentable. Lawyers however can write patent applications to obscure the obviousness factor, and sometimes do.

4) Be Useful. This is known as "You can't fool Mother Nature" clause (from the Chifton Margarine commercials of the 1970's). In simple terms, the invention has to work. If it doesn't work, it's not eligible for patent protection. While this sounds like a no brainer, a lot of patents are issued by the USPTO for inventions that cannot and do not work, as they break natural laws.

In addition to the 4 rules above there are two other rules which are extremely important:

5) Prior Art must be listed. If prior art is not listed, and it is provable that the filer knew about the prior are the patent may be invalidated. Where this is most important is with the obviousness clause, as it may be decided that based on the prior art that the invention was obvious, and therefore not eligible for patent protection.

6) The patent application must contain a description that would allow a person with "knowledge of the art" to build the invention. Deliberate obscuration of the description to block someone from building the device is not allowed (note that this is a also common complaint about software patents, that the description is not clear enough to allow someone to build a device).


See also