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A patently absurd situation

A court case which should be of some global interest is underway at the moment. Once upon a time, the concept of patenting was simple: The Government gave you a limited-term monopoly to sell a new product in exchange for a complete disclosure of the process. There were certain rules relating to what it could be, including things such as that it had to be new, and work and not obvious. What then, to make of this article in the NY times? It's been a while wince I've read anything by Michael Crichton, but this article is certainly worth a read.

From the article:

Unfortunately for the public, the Metabolite case is only one example of a much broader patent problem in this country. We grant patents at a level of abstraction that is unwise, and it's gotten us into trouble in the past. Some years back, doctors were allowed to patent surgical procedures and sue other doctors who used their methods without paying a fee. A blizzard of lawsuits followed. This unhealthy circumstance was halted in 1996 by the American Medical Association and Congress, which decided that doctors couldn't sue other doctors for using patented surgical procedures. But the beat goes on.

Other areas which have run into trouble in the past include software patents.

Firstly, I should say that I think patents used properly are immensely valuable for society. They encourage the private sector to generate knowledge for the public good. The problem is, of course, one of reward for effort. If I recall correctly, patents currently give you a monopoly for 17-20 years. This basically sets the timescale for payback for research. It puts a barrier against conducting research which will take longer to pay off, and, worse, it can lock people out of conducting research in certain areas.

Given some of the examples which Crichton and others have put forward, it suggests that the system requires overhauling. In fact, given that Dan Brown is being sued for plagiarism for a poorly written, mediocre grail-hunt novel by writers of an alleged non-fiction book, I'd suggest the whole IP area needs an overhaul, but I'll deal with patents here. What do I suggest?

First, each novel step should be rewarded as such and given a separate patent (or if not a patent, make a new definition, such as a sub-patent). I do realise that this is what the claims section is supposed to be for, but the tendency is to stick as much in the claims section as possible.

Actually, before first, we'll make a blanket "if any errors are found in the patent, the whole thing is void" statement. A zeroth law, if you will. The reason behind this is simple: If you are being rewarded for publishing knowledge, and there is a problem with the publication, the reward should disappear.

Anyway, each claim should be separate and have to face all tests regarding novelty etc.

Secondly, using only knowledge available in the patent and any public domain references referred to in the patent, a team with moderate competence in the field and any skills spelt out as necessary should be able to recreate the product and the results. This should pretty much cut out a lot of the nonsense regarding software patents unless there is full, complete disclosure of the source code.

Thirdly, any patent must relate to an actual product or processing step. You can't just patent abstract knowledge. For example, I have a paper which links the shape, size and concentration of particles in solution to the extensional viscosity. This is not and should not be patentable. Nor should it form the basis for a patent along the lines of "a method for tuning the extensional viscosity of a solution" or "a method for determining the size and shape of particles". On the other hand, if I have invented a new extensional rheometer, I am free to cite its usefulness for the latter case as an example of the usefulness of determining the extensional viscosity.

Finally, the knowledge must be something the public actually finds interesting. Not "what shall I read tonight: A Dan Brown novel or the latest patent by those whacky folks at Unilever" interesting, but rather that it is solving a problem which ultimately will filter down to the general public. This is far broader than it may seem at first, but it provides a couple of nice little safeguards against people using patents to block research.

So: Comments?


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