Wednesday, April 18, 2007

Fixing the Patent System

The US patent system is broken. It hurts us all more than it helps. It either needs to be fixed or thrown away.

How does it hurt us? Take the "One Click Ordering" patent by Amazon. It's a ridiculously simple idea that anyone and everyone could and would have implemented on their websites but Amazon just happened to get a patent on the concept. Because of this ridiculous patent, all of us have to endure multiple steps when we order products on other websites.

The "One Click Order" patent just happens to be the obvious target of ridicule in the patent system but there are many more subtle absurdities that cause us all harm in the form of higher prices and reduced access to new technology. The harm comes when companies create some new product or technology that innocently and accidentally happens to infringe some obscure, overly broad patent that no one ever heard of only to end up in costly litigation with the cost passed on to us, the consumers.

Technology patents today are a virtual minefield of obvious ideas that have been "claimed" like land in the gold-rush era. But if all these technology patents are so obvious that they get infringed easily by companies that never even heard of the patents, then did they really deserve to be patented in the first place?

The patent system is supposed to rest on this principle - "you tell us how you did it so that we can all do it in the future and, in exchange, we will give you a 20 year monopoly on your idea."

That's a reasonable proposition. But, it implies that if the idea is so simple that many people are going to come up with the same idea then the idea should not be patentable. Likewise, if companies are infringing patents accidentally left and right, then perhaps those original patents should never have been granted in the first place.


The fix seems simple based on the principle "you tell us how you did it so that we can all do it in the future and, in exchange, we will give you a 20 year monopoly on your idea." Simply add a criteria to the patent process that an idea must be unlikely to be invented by other people. And in patent litigation, if the patent is easily, unintentionally, accidentally and often infringed by people WITHOUT knowledge of the patent, then the patent should be suspected of being too simple and too obvious.

There is currently a push in Congress to fix the patent system. The drug companies want to keep the patent system strong while the technology companies want to reduce the cost of litigating accidental patent infringement. The solution posted here explains and solves the problem cleanly for both of them. Obviously, the creation of a new drug is expensive and time consuming and is not the kind of thing anyone and everyone can do on their own. This is why the drug companies deserve their patents. On the other hand, technology patents, in particular computer programming technology such as Amazon's One-Click Ordering, most definitely are likely to be independently reproduced by hordes of programmers which is why they do NOT deserve to be patented. The technology patents in the computer field are getting accidentally infringed everyday because they are simply ideas that thousands of programmers are likely to independently create - making them not suitable to be patented.

P.S. There is already a "novel" and "non-obvious" test in the patent system today but apparently it has no teeth and is not blocking utterly simple and obvious ideas like Amazon's One-Click patent.