Journal: An idea for fixing patent law

The scope of individual patents are often to broad, and applicable to inventions of dubious creativity or insight.

It seems to me that the mere non-obvious requirement is too subjective (and perhaps too low of a threshold) to justify a state granted monopoly and the threshold should be changed to something more objective.

I propose for your consideration, the the following threshold: an invention that would have been useful for some significant amount of time, but has eluded invention until now is worthy of the reward of a temporary state enforced monopoly (i.e. a patent) in the hopes of encouraging active investment in its discovery.

This threshold insures that most of the inventions which would be invented by default (because they are obvious enough to occur without any promise of monopoly) do not get monopoly protection, and go immedietly into the public domain.

As to the question of what is a significant period of time? That is somewhat arbitrary. It could be different for different types of inventions, or it could be 20 years for everything.

Once the general principle itself is accepted, then defining "significant time" is a seperate exercise.

The actual amount of time which would be considered "significant" should be set to something proportionate to the duration of the monopoly protection. Long terms of monopoly protection should only be rewarded for ideas which solve age old problems.

However regardless of how "old" a problem is, the duration of a monopoly should still be finite and clearly temporary. The durations of monopolies rewarded today are apparently long enough to encourage invention (as new inventions are constantly being created).

I only propose a means to discriminate between inventions worthy of monopoly and inventions which should immedietly go to the public domain (due to their obviousness). A system which does not rely on the subjective ability of a patent clerk to discriminate between "obvious" and "non-obvious", but merely the ability to discriminate between "useful" and "useless", and the ability to judge durations of time. I believe these are more objective measures than the measures currently used.

Patents should be a system to encourage inventions which would otherwise not occur. Patents should not be a system of inventor welfare. A patent should not be applied to an invention which is so obvious someone would voluntarily invent it for FREE.

Such a system, as I propose, would also have the benefit of reducing the practice of "evergreening". That is the practive of patenting a slight improvement on a currently patented invention. As the improvement was not needed until the underlying invention existed upon which the improvement itself was invented. The improvement would not be patentable if it was invented in less than a certain amount of time considered "non significant". The non patentability of the improvement leaves the field open to all who would invent such an improvement as long as they invent it within a period of time that would be considered not "significant".

If anyone invents that improvement (in that time) it would be free to all who were able to use the underlying invention (the underlying invention itself still benefiting from patent protection and being a prerequisite to using the improvement).

Such a system would also remove the incentive for the inventer to hold back on the improvement and "invent" a slightly crippled invention for the purpose of "inventing" the improvement several years later and in effect extend the duration of the patent. The inventor could hold onto the improvement for a period of time in a hope that no one else will invent the improvement themselves, however there is a risk. If someone else does invent the improvement within a non significant period of time, then that improvement will not be a patentable invention and will go to the public domain.

Of course both the original invention and the improved version become available upon the original patent's expiration.