8 ms·
One thing missing in the patent system is that the patent seeker should pay a "fee" of $1000 if it is patentlyobvious that prior art exists. That would enable
by silvestrov 13y ago
One thing missing in the patent system is that the patent seeker should pay a "fee" of $1000 if it is patentlyobvious that prior art exists.
That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.
- geoka9 13y agoAnd the person who found prior art should get a cut of that fee. Crowdsourcing at its best.
- freyr 13y agoAnd then every patent would receive a deluge of obfuscated examples of prior art. And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.
- zanny 13y agoCan you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years? IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?
- DevX101 13y agoThe pharmaceutical and biotech industry would be almost non-existent without intellectual property protection.
- busyant 13y agoAbsolutely correct. I used to work in this industry, and one of the 1st questions asked when we were thinking about testing a drug to treat a disease was "Does someone else 'own' this drug or do we?" If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease. Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible. The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies. There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.
- ESRogs 13y agoWhile I'm sure a case could be made that IP protection is necessary in biotech, isn't the example you gave actually evidence of the the opposite -- that patents stifle innovation and research?
- busyant 13y agoIt depends on what you want to get out of the pharmaceutical industry. I think it's the opposite. Since it costs so much $ to fund clinical trials and apply for regulatory approval, the lack of patents would stifle innovation because the pharma company that discovered the drug wouldn't be able to recoup their development costs if other companies were waiting in the wings, ready to sell a generic version of the same drug. If development costs (especially regulatory approval costs) go down significantly, then I think you can argue that drug patents are an unnecessary evil. But if things stay as they are, then they are a necessary evil.
- bandushrew 13y agodoesn't that mean that if nobody owned the drug, drug companies would be free to work on a wider range of research?
- freyr 13y agoI think the idea is that then they couldn't charge exorbitant prices to recoup their investment costs. Drugs cost an enormous amount of money to develop.
- busyant 13y agoPut yourself in their shoes. It's going to cost you $50MM-500MM just to test if a drug is effective and safe for treating a disease. You sink all of that money in, with the hopes that your drug gets approved. And then, once you've done the heavy lifting, every generic manufacturer can come along and sell the drug because you don't have it patented? No rational person/company will do that.
- 13y ago
- zanny 13y agoI don't necessarily call that a good thing. It isn't a black and white pro that a business gets monopoly rights to distribute new drugs for 2 decades, even if most new drug research is funded for that profit.
- freyr 13y agoYou're assuming that patents promote innovation once they're defended in court. Another argument would be that they promote innovation by (1) preventing blatant rip offs in the first place, (2) incentivizing individual inventors who invest their time and money with the assurance that their efforts won't be blatantly ripped off in the end by someone with more resources. There are countless examples of truly innovative patents filed by individuals who devoted their lives to creating new things. Some of the inventors profited directly from their patents, others spent their life savings in court trying to defend their patents. There are also countless patents for idiotic ideas, and countless idiotic patents that shouldn't have been filed in the first place. But saying all patents are bad might be throwing out the baby with the bathwater.
- cyanbane 13y agoI have to think that the patent in Spolsky's example cost at least a couple grand to produce/submit. I also would love to see the cost per rejected patent produced by the USPTO that comes from US tax payer dollars.
- roc 13y agoAs the Patent office generates net revenue for the US Government, you don't have to worry about that.
- sutro 13y agoActually you do have to worry about that. Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.
- roc 13y agoYou may have to worry about the incentives, but you don't have to worry about any cost in tax dollars of rejecting applications. Unless somehow they began rejecting so many applications, and those rejections all cost more than the fees collected from those applications, so as to total more in losses than the surplus revenue of the rest of the PTO (all other patent and trademark activity, including renewals) over its costs. Which Isn't Going To Happen.
- donaldc 13y agoSince the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible. I would hope that filers for patents that are rejected would still get charged a fee. If they aren't, they should be. After all, it still takes up a patent clerk's time.
- rgraham 13y agoThis appears to be the case. Well, perhaps not an additional fee, but filing isn't cheap. http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm
- Guvante 13y agoYou would have to make the penalty too high for a small shop to afford to actually impact the big wigs' carpet bombing technique. Similarly, what do you do about the "I was accidently too broad" cases, which are just as dangerous.
- kbenson 13y agoif it is __patentlyobvious__ that prior art exists That's worth a chuckle. (In truth, if it were patently obvious, this would be a much easier problem...)
- larrys 13y agoWould hurt the proverbial small inventor more than it would hurt others. Almost like a regressive tax.
- mrgoldenbrown 13y agoI think the problem is that the proverbial small inventor is extremely rare, and if they are indeed small enough for us to take pity on them, then a patent isn't enough to protect them anyway.
- fnordfnordfnord 13y agoI don't think the proverbial small inventor is so rare, but that as you say, a patent is practically useless for them.
- dlwh 13y agoMake the prior art fee scale up by number of patent applications submitted by that entity, then. First one's free. Then $100, then start growing at some small-ish exponent.
- pbhjpbhj 13y agoThen you get shell companies and such being used for patent filing making it harder to establish who really is in control of the applications.