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If Two People Invent The Same Thing At The Same Time, Should One Get A Patent?

from the obviousnous dept

For quite a long time, we've argued that one of the problems with the patent system is that it goes way overboard in providing rights to whoever came up with an idea first, even if others independently developed the same idea. That's lead some to suggest that patents should have an "independent invention" defense. After all, the patent system is designed specifically to encourage innovation where it might not occur otherwise (basically, assuming that there's market failure for innovation). If multiple people are coming up with the product simultaneously, that suggests (1) that there's demand in the market providing plenty of incentive for innovation and (2) the idea is not particularly non-obvious (as a patented concept must be).

Noel Le points us to some recent research on the topic including one by Mark Lemley and another by Samson Vermont (warning: pdf). The good news is that it's clear that more than a few people are thinking about this very issue. Vermont's piece also has a compelling response to the claim (usually from patent attorneys) that adding in an "independent invention" defense would simply lead to lies from people claiming to have invented a product independently. Vermont explains why there's little evidence to support that, given that with the system today, someone would get even greater benefit in falsifying a claim of "first to invent," and yet it's rarely seen. There are tremendous penalties associated with fraud and perjury (which lying about an invention would amount to), and that (plus moral issues) seem to make that argument less of an issue.

Unfortunately, it appears that Le completely misreads Lemley's article in his writeup about it. He positions Lemley's piece to be arguing against the "independent invention" defense, when if you read the paper, that's not the case at all. Lemley is clearly compelled by it, but just notes that rushing to put it in place without some limitations could create problems -- mainly due to legacy issues. His argument isn't (as Le claims) that adding such a defense would "reduce incentives to innovate and impose inefficiency on the market for patents." Rather, Lemley points out that Vermont's push for an independent invention defense is based on a few assumptions, and if they are wrong, then it could present problems. However, Lemley doesn't seem to be saying that those assumptions are wrong -- just that if an independent invention defense is implemented, it should be done in a way that carefully watches to see if the assumptions hold up (in fact, Lemley seems to agree that Vermont's assumptions may be true). Also, there is an important point that Lemley makes, that we've been suggesting for years. You may not even need an independent invention defense, if you had a better "obviousness" test for patents. The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space. In that case, there's no real policy reason to support that patents be given, since the incentives are already put in place by the market. It's good to see that these issues are getting a serious discussion in some areas -- though, whether or not these discussions will ever actually influence policy is another question completely.

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  1. identicon
    Andrew D. Todd, 17 Jan 2007 @ 12:43pm

    Patents, Simultaneous Invention, and Blogs

    Some time ago, Pamela Jones of Groklaw made what I consider a very useful point: Techies do not have to waste their time working within lawyers' rules. They can simply create whatever facts their lawyers need to win the case on a hands-down basis. For example, if a particular C function is supposedly infringing, write a noninfringing replacement overnight.

    Traditionally, technical art was published in refereed journals. Refereed journals had much higher standards than the patent office, and as a result, the patent office was able to crank out spurious patents faster than the refereed journals could publish good articles. Now, however, we have blogs, listservs, etc. Every open-source project of any size has its own blog. Blogs are freely available to the public, rather than being behind a "paywall." Further, there are "archiving engines," which record the contents of the blogs, along with the rest of the internet, and can eventually prove date of publication. Over a period of years, blogs can outrun the patent office. They will create paper trails of ideas two or three or four years before the patentees even realize that the ideas are worth money. A fourteen-year-old kid, playing with ideas, will always discover things long before a businessman does. It may take a while for the pre-blog patents to expire, of course, but the balance will gradually shift. You will eventually get the Commissioner of Patents on the stand before a Senate Sub-Committee, trying to explain why he does not allow patent examiners to do web searches, the real reason being that doing so would allow the patent examiner to definitively reject too many patent applications in a few minutes each.

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