Inventing a Better Patent System
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A great source of information on the new frontier of patents, copyright and the ongoing battles of intellectual property protection is: www.techdirt.com
GARY LOCKE, the secretary of commerce, has urged Congress to overhaul the nation’s patent law by the end of the year. Although a bill has been circulating since 2005, a fierce fight involving the high-tech and drug industries on a technical issue — how to measure damages when a company violates a patent applying to one component of a larger product — has kept it from reaching a vote.
The best way forward is for Congress to sidestep the damages question and instead add five amendments to existing statutes that would improve the processing of patents, reduce lawsuits and speed up the arrival of innovations on the market.
The quality of American patents has been deteriorating for years; they are increasingly issued for products and processes that are not truly innovative — things like the queuing system for Netflix, which was patented in 2003. Yes, it makes renting movies a snap, but was it really a breakthrough deserving patent protection?
One root of the problem is that patent examiners, many of whom are young or lack practical experience, are not qualified to evaluate whether complex claims in biotech or physics meet the most critical tests: whether the claim is novel relative to prior art, and whether this would be obvious to a person skilled in the art. To help fix this, Congress should pass an amendment allowing experts in the field to submit explanatory or critical comments on patent applications.
Currently, most such evaluations are prohibited “without the express written consent of the applicant.” But academic scientists and industry researchers are the best judges of an application’s novelty. Their input would help federal examiners better understand the merits of claims. True, outside comments would likely elicit disagreements from the applicant — but it is better to have this debate first rather than waiting until after patents are granted and taking it to the courts, as we do now.
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