Subject: Re: [openip] Re: "rights" and "freedoms"
From: Ben_Tilly@trepp.com
Date: Wed, 20 Oct 1999 18:24:30 -0400


> Stephen Turnbull wrote:
>
> >     Ben> Personally I think that a good change to the system would be
> >     Ben> a publically announced period with a large monetary reward
> >     Ben> for anyone who can demonstrate prior art.
> >
> > Who pays?  The Patent Office?  I think not....  If it's the applicant,
> > well, that will make patents exclusively a game for large
> > corporations.  It already pretty much is, of course, but do we want to
> > be pushing harder in that direction?  Do we want to increase the value
> > of existing portfolios, which don't have to risk that, by even more?
>
I should have responded to the above before.  Sorry.

Yes, I had in mind the applicant but in a way that is not too
unreasonable.

The cost is already $25000.  Double that with half of it being the
external incentive during the trial period.  When challenged a
company should have the choice of dropping their patent and losing
the money out of hand, or disputing the challenge, in which case if they
lose then the challenger's legal expenses are covered.  If they pass
the period for challenges then the extra $25000 is returned.  (Or you
can play various games with this as well...)

Given a system where it takes approx 10 days to research a patent an
individual could research about 30 patents/year.  If 1/4 of them were
challengable, the result would be economically viable.  Not to mention
that a well-organized group could probably do preliminary research
much more efficiently than that...

Doesn't resolve the existing cr*p out there, but it does not raise the bar
too much higher on getting a patent if you have a case, and it would
definitely discourage a lot of the ridiculous patents which currently
exist.

> One point that's been made to me by Greg Aharonian is that patents are
> big money to any of a number of players, including, at 25,000 x $5,000,
> a quarter of a billion dollars to the USPTO itself.
>
Ouch.

> The problem with the patent system as it exists is that there are few if
> any incentives to issue good patents -- patent holders don't seek them,
> the USPTO's certification doesn't select for them, and infringers often
> find it's easier to pay or quit than to fight.  There is little
> (insufficient?  none?) risk for bad patents.  Economists have a similar
> example in the phrase "bad money drives out good" -- imperfect analogy,
> but it might stir something in Turnbull's head.
>
You forgot, there is also no incentive for others to challenge patents!

That is probably more doable.

> The one reform I think has a proverbial snowball's chance at making it
> would be to add risk to the system.  Yes, the USPTO, which would have to
> reimburse registration fees, preferably plus interest and/or an
> additional penalty, for patents which are later invalidated for prior
> art.  To be effective, the fees would have to be high enough to force
> the USPTO, for fiduciary reasons, to clean up its act.  I'm not very
> optimistic that even this would happen.
>
You are thinking of punative damages.  This direction is unrelated to
what I had in mind which was change the review process to provide
for clear incentives for rejecting a patent.

[...]

Ben