from the it's-not-that-difficult,-guys dept
This week is the very first Patent Quality Week, in which a bunch of folks in the innovation space explore what it will take to improve patent quality. Unfortunately, for years, patent maximalists have tried to attack those of us who support a better patent system with somehow being totally against patents. They will regularly conflate arguments people have made to get rid of bad patents, and about how bad patents are abused to hinder, stifle, and slow down innovation, as if they mean that we hate all patents entirely. That’s not true. So this week we’ll be posting a variety of articles from different perspectives about how we can get better quality patents.
Almost exactly a decade ago, I laid out my plan for fixing the patent system, which included four separate proposals, all of which I still think are good. And so far, out of the four, only half of one has actually been put into practice (and is now under tremendous attack). That was the inter partes review process added by the America Invents Act, to make post-grant review of patents easier (though it did not come together with the other half of that suggestion, which is to drop the presumption that a patent, once granted, must be valid).
However, for this inaugural Patent Quality Week, I wanted to focus in on a separate prong of my plan to fix the patent system, which I think would massively improve patent quality practically overnight. It’s this: recognize that independent invention is a sign that an invention is not patentable. This may require a bit of explanation. Going back many decades, US patent law has, officially if not actually, used what’s known as the PHOSITA standard, which stands for “person having ordinary skill in the art.” Specifically 35 US 103, on the conditions for patentability and non-obvious subject matter, says:
A patent for a claimed invention may not be obtained… if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.
This is a different standard than the one that most people talk about regarding patents: whether or not there is prior art. But prior art is covered by Section 102, not 103. Section 103 says that if an invention would be obvious to a PHOSITA, then the patent should not be granted.
Yet, very little is ever actually done to determine if a PHOSITA would find an invention obvious. The PTO’s guidelines on this are more or less… just going back to the prior art determination. But it seems to be that there’s a better way.
If you see a lot of independent invention of the same basic thing done around the same time by multiple parties, that alone should be evidence of obviousness. After all, the others submitting their patent applications (or, better yet, creating their products) are, by definition, PHOSITAs. And if they’re all coming up with the same damn thing by themselves, then that certainly suggests that the inventions are not so novel that they require the incentive (and the monopoly) of a patent to have them created.
Indeed, history has shown time and time again that the biggest inventions occur more or less simultaneously to multiple people around the globe. It’s a recognition of the notion that some ideas are just “right” for their time. It’s not some stroke of individual genius. It’s that other conditions have come up to make the next combination of ideas somewhat obvious to those having ordinary skill in the art.
Lots of people have suggested that we should have an independent invention defense to patent claims (that is, you can get out of a lawsuit if you show you had no idea of the original patent), but I think that doesn’t go far enough. We should note that if there is such widespread invention within the same general timeframe, it’s strong evidence that no patents should issue in that space, because they are obvious to those having ordinary skill in the art.
That one change to the patent system would completely change the system and massively improve patent quality. It would wipe out a wide range of silly minor improvements that anyone with knowledge in a space would come up with, and focus patents on actual breakthroughs that are not at all obvious.