Reforming the Patent System Toward a Minimalist System

From the blog post:<p>"Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents (or without other benefits). Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling."<p>I generally agree with this, but I think it's a little analytically lazy. I think the Supreme Court was right to recognize that we should not just categorically ban certain kinds of patents. Instead, we should articulate the distinctions between the two industries and reformulate the patent eligibility criterion in terms of this distinction.

Becker and Posner tend to make pairs of posts on the same subject. The OP is from Becker, here is the corresponding post from Posner: <a href="http://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html" rel="nofollow">http://www.becker-posner-blog.com/2012/09/do-patent-and-copy...</a>

Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example:<p>• independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well<p>• allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'

Patents bring the following trade-off: inventor monopoly defendence vs. block of progress\future use cases utilizing patent. So patents both are enforcing and slowing innovation.<p>This could be fixed with with the following solution that will maximize public good. There're no good reason for 20 years patent periods in some industries with short cycle of product development, like software, mobile, cloud etc. Cleraly, after first 3-5 years patents start to be either completely useless or slowing down both patent holder's and external innovations. If company is defended by patent, there's no urgency for innovation. This is unfair advantage.

I just recently wrote a paper on software patents. Although we could suggest a shorter patent term, there are many practicalities in the process of granting patents that makes it an inferior solution to abolish software patents altogether.<p>Even without patents, we still have copyrights, "dress trade" and other nuances of the legal system, before we really have a worry-free, innovative environment.<p>God and the compilers bless the brave man to embrace such noble cause.

Oh, I can't wait to see how lobbyists and lawyers allow to dismantle the patent system ;-) I'd like to give some constructive critic, however. So, I propose the opposite approach. Let's make the whole system even more complex and expensive for patent holders.<p>Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money.<p>Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.

True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "tap to zoom" patent.