Countless words have been written regarding the state of the patent system, both in the U.S. and internationally. Typically, even the most positive proponents or critical opponents of the patent system acknowledge some cons and pros, respectively. As we experience the sultry summer days, this blog seeks reader participation to weigh in on whether the patent system is a midsummer night's dream, nightmare or somewhere in between.
One issue that has been raised by opponents of the patent system is that certain technologies should not be eligible for patenting at all. For example, some say that computer software should not be eligible for patent protection. Others believe that computer hardware should be eligible for patent protection but perhaps for a shorter term than the current 20 years of patent protection, e.g. 5 or 10 years.
Regular reader to this blog have on no less than two prior occassions (now three) been exposed to the reason we, in the U.S. have a patent system. The Framers of the United States Constitution knew of the importance of technological progress.
The Congress shall have the power...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (U.S. Constitution, Article I, § 8, clause 8).
This provides inventors with an incentive to create new products and processes. It also gives companies and investors (e.g. venture capitalists and stockholders), incentive to invest capital looking for a return on their capital investment.
Congress has limited the duration of the monopolistic protection. In return for the protection, the inventor must disclose his or her invention to the Patent Office which, in turn, discloses the information to the general public.
The U.S. Patent Act was drafted to accomplishes two goals. First, it encourages innovation and discovery through its incentive of limited monopoly. Second, the patent system promotes the disclosure of useful technology to the general public by putting it in the public domain.
While patents can be misused and perhaps 20 years may be too long for certain technologies, e.g. some argue that software and possibly, hardware inventions, the core idea of any patent system, going back to our U.S. Constitution is to "provide an incentive" to people to create new and useful inventions, by (1) granting a limited monopoly in exchange for (2) disseminating the knowledge to the public.
But is this working out as the Framers intended?
Things to consider are:
Would people (inventors and companies) continue to invest time and money to create "inventions" if someone could copy the ideas without having to invest his or her own time and money?
- Is the public really getting a benefit from the information described in the patent, building on the information and know-how, and/or learning from it?
- Would information currently being disseminated through the patent system still be disseminated to the public if the current patent system were curtailed or altered?
Proponents of the patent system, e.g. companies spending precious capital to secure patent protection, including biotechnology and semiconductor manufacturing companies, consider the limited monopoly essential to give their companies a competitive advantage and necessary to recoup research and development costs.
Without the limited term monopoly, these proponents would argue that they would never be able to recoup the investment as competitors could swoop in and easily copy the technology that the company spent many dollars and years to discover and develop.
Opponents say that at least some technologies do not need a patent system as companies and inventors will still create the technology regardless of whether a patent system exists. Some such opponents cite start-up companies which do not have sufficient capital to patent their ideas but still spend money on research and development.
Some opponents believe that the patent system actually stifles innovation and competition. They argue that competitors would create competing products but do not in fear that they may be sued by a patent holder for patent infringement. Some look to patents for technologies in mobile devices like the iPhone and Android devices when arguing that more companies would be creating hardware and software, spurring mobile communication innovation and driving down prices if not for the threat of possible patent infringement.
Still other opponents argue that the 20 year term is too long of a monopoly, especially in today's immediate access information age. Further, opponents say that, with some technologies, after 20 years, the technology is so obsolete that no one even cares about it anymore.
A quick rebuttal to this last opponent argument is that the public still benefits from the knowledge disseminated in the disclosure of a patent, even if,
arguendo, after the 20 years, the originally disclosed technology may be obsolete.
Likely, 20 year in the future technology is based on, build from, or has ties to past technology. Over the 20 years the patent holder has exclusivity, others in the public have access to the information in the patent, can learn from it, improve it, and advance technology. If the past technology was never created, future technology may not exist.
In view of the foregoing, I pose several questions for discussion.
Question #1: Do we need patent protection for certain technologies?
Question #2: Would people still invent if patent protection were not available?
Question #3: Will investors still invest in companies if patent protection, i.e. exclusivity, is not possible to prevent others from entering the marketplace?
Question #4: Should the patent term be less for certain technologies?
Question #5: If yes to question #4, which technologies and what should the length of the patent term be?
Please post your answers to these five questions, the three "Things to consider" items above, post your own questions, or post a comment or remark to this blog. We look forward to a spirited discussion.
Coming up....
ACT II
