I have given a lot of thought to patent
reform, and most of the angst about patents derives from a simple fact: Some patents generate industries and others
just make minor tweaks, but all of them are treated equally under the law. Not all inventions are created equal, and
jamming them all into a binary patent system (i.e. “valid” or “invalid”) means
that the incentives we give to invent a cold fusion reactor are unfairly given
to people making nearly negligible, incremental improvements to existing
technology.
The precise shape of the curve is unknown (I think the red line may be more accurate).
The terms “broad” and “narrow” have special
meaning in patent law, so to avoid confusion I’ve come to identify patents as
“broadband” or “narrowband”. Basically,
some patents are “broadband” patents, covering a technology that is entirely
new. For example, a broadband patent
that spawned an entire industry started as simply sending more current through
a wire than the wire can handle, causing the wire to release light. Other examples are triangulation of a signal
(eventually LORAN and then GPS), use of radio towers to handle the hand-off of
a signal from one tower to another (eventually cell phones), or regenerative
braking. Each of those inventions gave
rise to a set of important, but less broadband inventions, such as using
different kinds of wire to make light, varying the current, enclosing the wire,
filling the enclosure with different gases, coloring the enclosure, etc.
Eventually, inventions start to refine
ever-smaller areas of the field. While
we might start out with the amazing idea of handing off radio calls between
fixed towers, and integrate other awesome and important ideas such as frequency
hopping, we eventually end up with the narrowest of narrowband patents, ones
that cover things like using a smart phone to buy something within an app, or
having a list displayed on a phone “bounce” when a user scrolls to the bottom
of the list (and mixing apples and oranges, we end up with design patents like
protection for design with a black shiny screen with a beveled edge). Nobody would argue that the “bouncing list”
invention was anywhere near as important as the invention of the use of
multiple towers to communicate with a moving device, or that in-app purchases
are on the same level as GPS triangulation, but the patent system treats all
utility patents equally. The patent
term, rights and remedies afforded the tiniest incremental improvement patent
are identical to those afforded the patent that spawned the industry.
Intellectual property law is one of the few
(perhaps only) areas where the law is nearly entirely binary. The process starts the minute the invention
leaves the inventor’s hands and lands in the patent office. From there, four simple questions determine
patentability: (i) Is the invention
patent-eligible subject matter? (ii) Is the invention useful? (iii) Is
the invention novel? (iv) Is the
invention not obvious (the clumsy "not obvious" phraseology is commonly used in patent practice)? An invention that
is barely novel, one that is only barely not obvious, one that is barely useful
and squeaks past the subject matter eligibility test, is afforded the same
protection as the greatest of all inventions.
I believe the equal treatment of narrowband
inventions (combined with horrible enforcement choices, such as going after end
users) is the main reason many people view non-practicing entities as “patent
trolls” and why there is a broad belief in some groups that something is broken with the
patent system.(1) If I invented cold
fusion, nobody would begrudge me a 20 year patent. I could sue every infringer and all but the
most hardened enemies of patents would feel that this is the way the patent
system is supposed to work. Indeed, I
could assign the patent to a non-practicing entity so that I could spend my
time on my next invention instead of litigating my previous invention, and
while people might think I’m stupid for sharing the profits from my invention,
they wouldn’t think it meant that the system was broken.
The patent system works as intended with
regard to broadband inventions – but breaks down as the inventions it protects
become narrower. The fundamental human
rejection of unfair enrichment at the expense of others bumps up against the binary
nature of the patent system when the amount of protection given to an invention
is unhinged from the importance of the invention.
We can differentiate a broadband patent from
a narrowband patent by asking whether the patented claims would have inevitably
been invented during the patent term.
Obviously, the invention itself cannot be used as the basis for
identifying the inevitable invention date, as that would frustrate the intent
of the rule. Rather, progress in related
(or unrelated) fields would be used as the benchmark.
For example, the field of smart phones and
apps was moving so quickly that whether the Lodsys patent was legitimately
issued or not, it is being enforced at a time when nearly every app developer
would have independently invented the features protected in the patent
claims. Put another way, the more an
invention carves out an entirely new field, or an entirely new area within an
existing field, the longer it would have been before somebody else would have inevitably
invented the same thing.
Most people would agree that the patent
system should encourage the development of important inventions that carve out
new fields. Where we start to see
radically divergent opinions is when we talk about inventions that shaved a few
years, or sometimes a few months, off of the development of an incremental
improvement in a field.
In short, some inventions are so fundamental
that they build on little more than the creativity of the inventor. Those inventions spawn industries. Other inventions are so trivial that they do
little more than provide superficial polish to existing products. Rather than pretend that all inventions are
equal, a far better system would hinge on an “Inevitable Invention Rule”. Basically, the patent system would recognize
that some inventions are more important than others, and would treat them that
way. In a theoretical world, a patent
would simply expire on the date that its claims would have inevitably been
invented by a third party even had the original inventor never existed. In the real world, though, the actual
inevitable invention date is far from clear-cut. There is also the need to encourage the
development of incremental innovations through the grant of some kind of patent
term (imagine the case of numerous drug companies racing to develop the same
drug).
While the implementation and details are of
no small import, legislators and courts are well equipped to treat different
things differently. One approach may be
to put the onus on the patentee to file a document with the patent office
identifying the inevitable invention date within two years of the passing of
the inevitable invention date. The patent
would automatically expire some period (four years?) after the declared
inevitable invention date. There would
need to be some kind of expedited system where a party could challenge the
patent administratively or in court and seek a declaration as to the inevitable
invention date. To encourage the
inventor to admit the inevitable invention date and save everybody the trouble and cost of proving it, a penalty should apply if the inventor refuses to admit the passage of the inevitable invention date. Perhaps an administrative or court declaration of inevitable invention
date that is significantly earlier than the one the inventor declared (if the
inventor declared one at all) should have the effect of immediately terminating
all rights in the patent as of the court- or administrative-identified date,
possibly including the right to damages for past infringement.
Now imagine how the Lodsys patent enforcement
effort happens if the inevitable invention date system were in place. It is pretty much a no-brainer that in-app
purchases would have inevitably been invented by around 2009. So Lodsys would likely have declared that
date and collected a small amount of royalties for four more years, but been
without even the possibility of an injunction (I know, Ebay, but still). If Lodsys got greedy and refused to declare
the inevitable invention date, the defense would have been that it failed to
declare the inevitable invention date, and when the defense prevailed, Lodsys
would have received nothing.
The beauty of the inevitable invention date
rule is that it tracks our common sense understanding about what the patent
system should be doing. It leaves
inventors of incremental narrowband inventions with the ability to get paid for
the invention but without the leverage to earn more than the invention really
is worth. At the same time, it leaves
inventors of broadband inventions with the full patent term they deserve (this
works particularly well in the biotech field, since the first drug in a class
of drugs would almost always have no inevitable invention date, while the
development of subsequent drugs in that class would have an inevitable
invention date a reasonable time in the future).
1. This question has gathered increasing importance as courts and legislators
struggle to deal with the consequences of a system that misses real problem:
Some inventions are simply inevitable.
Because the statutory tools do not exist to deal with the problem on
this level, however, subject matter eligibility has become a (poor) proxy. Many software innovations fall into the
inevitable invention category, but because of the failure to appreciate the true underlying problem, there has been a push to make software ineligible
for patent protection.
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