From the readings, what exactly are patents? What are the ethical, moral, economic, or social reasons for granting patents? In your opinion, should patents be granted at all? Are they really necessary or beneficial for society? Do the promote innovation or do they hinder it? Explain. Additionally, should patents on software be granted or should patents be restricted to physical or more tangible artifacts? Explain. Finally, is the existence of patent trolls evidence that the patent system is working or that the system is broken? Explain.
I happen to have taken a lecture class on patent law, so stuff I say here without attribution come from my notes. Let’s establish the definitions first: legally, a patent is a right to exclude others from using the patentee’s invention for a limited period of time (20 years in the U.S.), in exchange for detailed public disclosure to add to the collective public knowledge—when the patent expires, anyone can use the invention described in the patent, benefiting from the inventor’s brainpower. There are a few major types of patents: machines, methods, designs (and interestingly, plants), and patents about software are usually patents about methods. The U.S. patent law excludes abstract ideas—theories and algorithms are not patentable—software patents are usually framed as “a method for doing something.” The patent office requires patents to be very narrow, encompassing only the novelty in the invention, defined painstakingly in detail, so the patentee can’t prosecute other people when their invention is only tangentially related to a product. Patents can also be “designed around”—companies can design products specifically so they are similar to a patent but don’t fit its description—which is morally questionable, but it helps deliver the patented inventions to more people.
Normally, the patent system helps us tremendously—it incentivizes inventors to publish their new inventions, so that everyone else can benefit from the invention. Take Apple as an example—Apple designed and patented “slide-to-unlock” when people had to punch in a passcode to unlock phones (the patent is still in effect in the U.S.), greatly improving the usability of the iPhone. After the Apple patent, multiple companies learned from Apple’s patent and developed similar techniques for unlocking their phones using gestures, and ultimately it’s the users who benefited from the general idea of gesture-to-unlock. Had the patent system not been in place, Apple, or any other company, may not be incentivized to invest in R&D, knowing that their inventions would be appropriated. (I should note that this is not the case for Tesla, since their goal is to get as many people into the electric car field as possible, not to protect themselves against nonexistent competitors.)
But patent trolls clearly show that there’s a weak link in the system, which is the human factor in the process of granting a patent. There are no committees or panels that review patent applications and make decisions—that would be too time-consuming and costly—usually, one patent examiner who specialize in a specific technical field is assigned a patent application, and they work closely with the applicant’s patent agent to revise and decide on the application. When the examiner is not authorized to sign decisions, other senior examiners may review the decisions. Under the current system, we’re relying solely on a handful of examiners to differentiate legitimate patent applications from applications filed by patent trolls. It’s difficult, because it’s hard to tell the difference between trolls and research facilities that make no products but only license their patents. It’s also not really part of the examiners’ job—the more important aspect of their job is to search for prior art, understand the novel technical details, limit the scope of applications, and clarify any ambiguous language.
I tend to think the USPTO should employ more patent examiners, and require multiple examiners review each application to dispel illegitimate applications, but today, the current system may be the best we can have for now. We’re moving in the right direction, however. Europe has less of a patent troll problem because the loser of patent lawsuits pays attorney fees for both sides, and the U.S. Supreme Court issued a decision in 2014 which allows similar schemes to happen in the U.S.. Before we eliminate human greediness altogether, the patent system is doing a decent job of protecting us against ourselves.
Conundrum 