The Economist Notices That The Patent System Is Hindering Innovation And Needs To Be Fixed

from the wow dept

A whole bunch of you are sending in one of the first mainstream articles I've seen on patents that gets almost (but not quite) everything right. The Economist has a wonderful piece that clearly explains why patents are hindering, rather than helping innovation. It notes the difference between innovation and invention -- and how patents quite often can hinder the former. It discusses how patent thickets get in the way of innovation, and the focus on using patents to force through massive cross-licensing deals simply adds transaction costs and reduces efficiency in the market. The solution to all of this put forth by the Economist is mostly the same thing we've been suggesting for years: bring back a real test for "obviousness" that gets rid of obvious patents -- though, it falls short in not suggesting an independent invention test for obviousness. The only other areas where I'd say the Economist article falls short is (1) simply assuming that patents do work in pharma and biotech -- when there's evidence that's not true, (2) assuming that a ruling in Bilski alone might clear up the obviousness issue and, finally, (3) its parting suggestion that programmers focus on copyright monopolies, rather than patents. Still, it's about as good a piece on this subject as you might expect to see in such a mainstream publication.

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    Ima Fish (profile), 8 Feb 2010 @ 12:26pm

    Having an independent invention defense would not solve our patent problem, although I do agree that such a defense should exist.

    Even with an independent invention defense, it would still be a fact question for the jury to determine whether the accused patent infringer invented the process/method/whatever independently. Thus there would still likely be a long drawn out and costly trial which the patent holder would use to force a settlement.

    The standard has to be much higher and more strict in order to obtain a patent in the first place. Throwing out a bunch of random patents does not magically create innovation anymore than randomly banging keys on a keyboard will magically create music worth listening to.

    But the patent office makes good money with its "you file it and we'll grant it" patent process and all of those patent attorneys make a great living fighting over our vague patent laws, so I won't hold my breath awaiting any changes.

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