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
    Me, 6 Jan 2016 @ 1:37pm

    I totally disagree with any kind of intellectual or patent laws. Anything we design or discover is a gift to all humanity from God, and no one party should be allowed to profit more than any other party for this gift. With that said, I think patents suck. I think it should come down to who can create a sustainable product and who has a working factory or working whatever, for atleast 10 years, and should have to prove that the idea is beneficial to humanity. All patents should immediately expire at the death of the patent holder - all patents must be held by people and not by corporations, businesses etc (how can a corporation have a brain to invent? Since they don't, then they should not get patents. Patents expire and become owned by the public when the person dies. Patent's are only good for 25 years, and can not be renewed. After 25 years they become owned by the public.
    Everytime I come up with an original idea on my own, based on my own thoughts, I find out someone else has a patent - not only that, but they got the patent 50 years before I was born, so I didn't even have a fair shot at getting it, even though I had the idea on my own originally without outside input. Even if I had outside input, that input is not going to be identical to the first persons.
    Patents only benefit corporations. It is time to put an end to that.
    If patents must still be allowed to exist, then they must be owned by people, as per my above notes, and must have expiration dates and then become part of the public domain.
    Inventions are not really inventions anyways. An invention is nothing more than applying the laws of science, nature, physics and mathematics to something to give it meaning.
    I have always disagreed with the idea that the first person to register their idea is the only valid owner of that idea, there are billions of people on this Rock, and to deny anyone the right to discover and invent anything on their own, whether someone else did it before them or not, is one of the greatest things we can do as human beings. That should never be squashed by a patent system that is now truly bought and paid for by big business, big corporations and corrupt politicians.
    To me, ideas who ever has them, and who can ever claim they can make what ever at a certain cost and profit, in order to get financing, should have nothing to do with whether someone else "owns" a patent to that idea or thing. That is just so against what it means to be a human and a lamb of God.
    The entire patent process and intellectual property rights issues are an invention of the devil, because the sole reason for them is born out of greed.
    If two people have the same idea (whether someone has the idea 50 years before the next person has it independently on their own or at the same time), they should be allowed to duke it out to see who can actually be best at bringing their idea or product to market.
    Do away with all of this. The average person no longer has chance in hell of ever getting a patent. It has become like hitting the lottery which is nearly impossible.
    We must put an end to all patents and intellectual property rights laws, so that every person on this planet can invent away without worrying that they wasted their life striving for something that someone else already laid claim to.
    What about all of these corporations, or individuals for that matter, who apply for patents for things that with current technology we have no way of either actually making or bringing to market in an economical way. To me, patents should not be granted for that stuff, but just look at apple, they filed for patents 30 years ago for things that never could have actually been produced 30 years ago. In fact, many large corporations own thousands upon thousands of patents that they never use, probably for things they filed for 50-100 years ago. What about the rest of us born after that? Do we not also have a right to discover the same thing on our own?
    Sorry, I will never buy into any thinking that patents are right or are needed. They are nothing more than a way to keep the average person down.

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