Issue #43
Last Update December 24, 2005
Technology The Patent Mess by David Katz The world patent system is badly in need of substantial reform. Rather than stimulating invention and innovation, the patent system and its relative, the copyright system, stand in the way of progress. Unless significant changes are made, large corporations will be able to stamp out, suppress or coopt anything that threatens their profits.
Three developments have brought this situation into being: the expansion of areas considered patentable, the extension of patent terms and easing of renewability, and underfunding of the patent office. Coupled with the outrageous changes recently made to copyright laws and the inhibitions written into law in the DMCA, large domestic and multinational corporations have achieved a stranglehold on innovation.
Originally, patents were granted for tangible inventions: machinery, chemical processes, articles of use. Things existing in nature were not patentable, though processes to extract or synthesize them were, as were new uses for them. Living organisms were not patentable. Concepts were not patentable; their expressions or implementations were. Today, the patent office no longer requires a working model to prove the practicality of new devices. It accepts patents for natural substances, organic and inorganic, rather for some novel use of them. Patents are granted for ideas or ways of doing business (one-click ordering on the internet is a patented concept) rather than the implementation or expression of the idea. Agribusiness and pharmaceutical companies are patenting organisms right and left. And if someone accomplishes a nifty result using some mechanism, circuitry or computer program, the law now criminalizes the analysis of that mechanism, device or program in order to achieve the same end by different, non-patented means.
Patent terms were granted for a period of seventeen years. Current law has stretched the original patent period to 20 years, with an additional five year extension available under certain circumstances. Patents that might otherwise have lapsed and been released into the public domain are now locked in long after the inventor has ceased to care about them.
The most serious problem is the underfunding of the patent office. Whether due to a political philosophy of reducing government oversight, a desire to shrink the size of government, or a political payoff to the companies who benefit most from lax patent-office operations, the patent office is no longer doing the job it was designed for: approving patents based on merit. For most of the history of the patent system, a patent would be granted only if it met the three main criteria of workability, non-obviousness and originality. Today, the patent office accepts patent filings and grants patents without serious determination of any of these criteria, depending on competitors of the patent holder to contest the patent on the grounds of design flaw or prior art or obviousness Thus, users of techniques and concepts that have existed for decades find themselves being sued for patent infringement and back royalties by companies that had no hand in the development of the devices or techniques used, simply because at some late date these companies filed for a patent. It takes deep pockets to contest a patent; most users in conflict with the patent holder do not have the resources to defend themselves against predatory adversaries.
International trade treaties have merely made things worse. Often, differences in national copyright and patent laws are reconciled by adopting the worst and most restrictive (from the public's point of view) terms of each. Monopolistic control of innovation is spreading, and the usual tools for fighting back, including reverse-engineering to avoid patent restrictions, have been taken away and rendered criminal. Revision of American patent laws, proper funding of the patent office, and restructuring of international treaties regarding intellectual property are urgently needed.
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New York Stringer is published by NYStringer.com. For all communications, contact David Katz, Editor and Publisher, at david@nystringer.com
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