CarlWeathersForPres (profile), 9 Feb 2011 @ 7:58pm
I'm going to agree and disagree here. I'll agree that there are structural deficiencies with the patent system(just like the copyright system) and many companies rely on IP rights too much in their business model. I also agree with the "broad patent" issue. If there's a patent where the first claim reads "a method for reading vital signs in which an implanted devices communicates with an intermediate device which transmits the information to a central server for storage" essentially covers everything that uses the internet. Technically, there are likely issues with indefiniteness, but practically nobody has the money to litigate.
As far as flash of genius, that's a myth(although making it a flash of genius would get rid of all the problems you talk about). I suggest you read KSR v. Teleflex(level of proof needed for obviousness) and Graham v. Deere(secondary factors of obviousness) for more information. In essence, your correction on obviousness was done in the 60's(Deere) and KSR makes a higher standard of obviousness. The one issue I see with you're test for obviousness is how do you prevent all out perjury?
My opinion on what should be fixed with the system:
1. Shorten the length of patents to 5 years(I could see keeping it longer for pharmaceuticals that go through many years of subsequent testing). In an economy that turns over so quickly, 20 years is essentially the life of the object. The issues of funding/marketing of yesteryear are not as prevalent now, and an inventor doesn't need 20 years to actually exploit his idea. I also think this would remove patents as a defensive measure, but leave it there as a way for an inventor to establish a market.
2. Forced licensing if the patented device or an obvious variation is not being manufactured(i.e. make 102(c) less than having to announce it to the world, which is only overturning case law)
3. Enforce Bayh-Dole(there's a little used provision that allows the US gov't to retain rights when they fund the research) and when the government is the primary contributor to the research, license the patent out to multiple companies.
4. Put all litigation into a tribunal at the patent office. I would prefer the European system where you have a year and a half to challenge, but not married to it. Either way, way too much money in patent litigation just so you can settle. Patent litigation is another business tool.
In essence, I think the Patent system(just like copyright) needs to be revamped, because we've been patching a system that was developed in the 1820's(that's when the core legislation that's in place was originally put in) and could never have foreseen what we have now. I don't think that means that the system should be scrapped, but I think that we need a better fit because the dynamics are vastly different from the last big
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As far as flash of genius, that's a myth(although making it a flash of genius would get rid of all the problems you talk about). I suggest you read KSR v. Teleflex(level of proof needed for obviousness) and Graham v. Deere(secondary factors of obviousness) for more information. In essence, your correction on obviousness was done in the 60's(Deere) and KSR makes a higher standard of obviousness. The one issue I see with you're test for obviousness is how do you prevent all out perjury?
My opinion on what should be fixed with the system:
1. Shorten the length of patents to 5 years(I could see keeping it longer for pharmaceuticals that go through many years of subsequent testing). In an economy that turns over so quickly, 20 years is essentially the life of the object. The issues of funding/marketing of yesteryear are not as prevalent now, and an inventor doesn't need 20 years to actually exploit his idea. I also think this would remove patents as a defensive measure, but leave it there as a way for an inventor to establish a market.
2. Forced licensing if the patented device or an obvious variation is not being manufactured(i.e. make 102(c) less than having to announce it to the world, which is only overturning case law)
3. Enforce Bayh-Dole(there's a little used provision that allows the US gov't to retain rights when they fund the research) and when the government is the primary contributor to the research, license the patent out to multiple companies.
4. Put all litigation into a tribunal at the patent office. I would prefer the European system where you have a year and a half to challenge, but not married to it. Either way, way too much money in patent litigation just so you can settle. Patent litigation is another business tool.
In essence, I think the Patent system(just like copyright) needs to be revamped, because we've been patching a system that was developed in the 1820's(that's when the core legislation that's in place was originally put in) and could never have foreseen what we have now. I don't think that means that the system should be scrapped, but I think that we need a better fit because the dynamics are vastly different from the last big
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