What Do Pot And Software Have In Common? Stupid Patent Thickets Based On A Lack Of Patented Prior Art

from the stupid-patent-rules dept

Recently Reuters had a fascinating article all about the new patent thicket in pot that is appearing, thanks to legalization efforts in the US and around the globe.

With marijuana now fully legal in Canada and at least partially legalized in the majority of U.S. states, companies are rushing to patent new formulations of the age-old botanical. This year, the U.S. Patent and Trademark Office has issued 39 patents containing the words cannabis or marijuana in their summaries, up from 29 in 2017 and 14 in 2016.

And, of course, with patents come the inevitable lawsuits:

The first U.S. case is now winding its way through the courts. In a July lawsuit, Colorado-based United Cannabis Corp accused Pure Hemp Collective Inc of infringing its patent covering a liquid formulation with a high concentration of CBD, a non-psychoactive cannabis ingredient touted for its health benefits.

One of the key issues in this case and others, experts say, is whether the patent is overly broad or obvious in light of “prior art,” the existing level of science or technology against which an invention’s novelty can be judged.

Basically, there hasn't been that much official prior art because pot was considered illegal for so many years, and no one was rushing to patent anything. And, of course, patent examiners are somewhat limited in what they're set up to research regarding prior art, and they often rely on earlier patents and scientific articles as the basis for prior art searches. And, with pot, there aren't so many of those.

Of course, this is actually quite reminiscent of the mess that came with software patents. For a long time, most people didn't consider most software to be patentable (this is not entirely accurate, as there are software patents going back many decades, but many people considered it limited to a few special cases of software). However, in 1998, we got the State St. Bank case, in which the Court of Appeals for the Federal Circuit basically threw open the doors on patenting almost any software. And those doors remained completely wide open until the Alice v. CLS Bank decision in 2014 (which hasn't totally cleaned up the mess of the State Street ruling, but has certainly helped dial back the insanity).

But, for nearly two decades after the State Street ruling, the US Patent Office was patenting software willy nilly -- often despite much of it having tons of prior art or being completely obvious. A big part of the problem was that examiners, again, focused on mainly looking at earlier patents and scientific journals for evidence of prior art. But because so many people didn't think that most software was patentable, there were very few patents to look at, and it's pretty rare for anyone to write up the details of software in scientific journals (they just make the damn software).

That resulted in tons of broad software patents that covered things that had been done for decades or that were entirely obvious. And thus, we had huge patent thickets and massive patent fights that cost billions of dollars, caused innovative companies to go out of business, and generally were a massive tax on innovation, where almost all of the proceeds went into a few patent lawyers' pockets. To this day it is a huge black mark on how the patent system works, and how it actually did significantly more to harm innovation than to help it.

I'm reminded of this mess in reading about the situation with patents around pot. While the situations are not entirely the same -- the reasons for a lack of earlier patents are quite different -- the overall impact is similar. The lack of earlier patents is creating an open field where things that have been done for years, or that are considered obvious, are still getting through the patent office with a stamp of approval. And it's only going to create a pretty big mess with lawsuits. You would have hoped that the USPTO would have caught on by now, but apparently not.

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Filed Under: patents, pot, prior art, software


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  1. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Dec 2018 @ 6:15pm

    Re:

    I like you, you are expressive, more than most of the others in this liberal lair.

    How about Interval Windshield Wipers? That single invention has saved hundreds of millions of people the aggravation of turning their wipers on and off, and and off, in a light rain.

    The point about “sliced bread” was meant to be a touch ironic. There is such an invention, a “Bread Slicing Machine”, innovative in it’s day, but that was not really my point.

    Actually innovation is really valuable. Tilting the playing field in favor of actual innovators is good for society as a whole. Who would want to go back to the world prior to the invention of the toaster?

    The question is not who can build it the cheapest or who can market it the best. The answer to both is that the big corporations, with access to large capital resources, can do both effectively. What they can’t do, and won’t do, is innovate. They have no reason to. They would all rather “sell what we got” than upset their own apple cart.

    Even MM would agree with that.

    Why would people spend years and years of research and development if anyone else could just immediately copy the fruit of their labors?

    I believe if you thought this through a little, you might see the wisdom behind the US patent system. There is a lot of history to consider.

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