Patents as currently implemented are totally nonfunctional and a generally stupid idea. Note that I’m talking about patents here, not copyright which is something totally different. In general terms, a patent is a monopoly grant to the patent holder, a monopoly which has legal force, usually for a limited time. Now, the notion of rewarding an inventor with a limited monopoly is, in general, a sound idea. However, patents have become particularly problematic in their current incarnation.
The biggest problem with most current patent systems is that they permit patenting things that are clearly not inventions. Computer software, for instance, is not an invention and should not be patentable in any form. In particular, algorithms for accomplishing tasks on computers should not be any more patentable than mathematical algorithms. After all, an algorithm itself is not a device! Similarly, simply finding a genetic structure in nature somewhere should not grant a patent to the discoverer. Even if the genes are artificial, it is dangerous to grant a monopoly on something that is inherently uncontrollable. What happens when the same genetic code appears in a human being?
Patents generally have a limited term, which is good. The term might be too long for many things, but it does, at least, expire in a predictable fashion. However, some patent systems, such as the one in the United States, make any patent under review secret and allow extensions to the review process which allows a nefarious actor to essentially hide a patent until someone else manages to come up with the same thing, let their patent pass the review process, and than sue the poor sucker who had no possible way of knowing he was violating a patent that was not available to learn about. This is your basic submarine patent if I have my terminology right.
I will avoid turning this into a long rant about the ills of patents. Instead, I will switch to my take on what would be a reasonable patent system in my mind.
- A working version of the invention is required in order to receive a patent. Regardless of what the patent is for, if you can’t construct a working version, you haven’t invented anything. Whether you should be compensated for having an idea that later turns into a real invention is a separate issue and has nothing to do with protecting a limited monopoly on a real invention.
- A patentable invention must be a physically distinct device that must accomplish something clearly beyond the scope of all of its specific components. That means a physical device that is simply a general purpose computer in a special housing running a program is not an invention. It also means that anyone duplicating a physical invention on a general purpose computer has not violated the patent. Yes, this would make a great many things non-patentable. This is a good thing.
- An invention must not be substantially similar to any previous invention, patented or otherwise. This is the so-called “prior art” exception. Thus, it should not be possible to patent a wheel given that there is clear prior art going back thousands of years, regardless whether there was a patent filed on it or not.
- Nothing which forms a crucial underpinning for human life itself should be patentable. That means no gene patents. It is reasonable to consider molecular patents as long as they are not crucial components of human life. That means vitamins, genes, water, naturally occurring hormones, etc., cannot be patented.
- Anything capable of self-replicating without intervention must not be patentable. That means plants which grow on their own in a field and can reproduce are not patentable. If there is no reasonable means to protect oneself from infringing on a patent for an invention, the invention is not patentable. There is no reasonable means to prevent your crop from cross-pollinating with your neighbour’s crop or to prevent seeds from your neighbour’s crop from ending up in your field.
- Patents must be public and searchable for their entire duration from initial application to final expiry. It is not reasonable to expect anyone to be liable for infringing on something they had no possible way to know about.
- Patents must be written in a language that is intelligible to an ordinary citizen competent in a related field of endeavour. If it is not intelligible to such a person, then how can he possible avoid infringing on it?
- Patents must cover exactly one clearly described invention. The current practice of including multiple claims on a single patent, starting with a ridiculously general description and moving to ever more detailed and complex claims is deleterious to understanding patents. Instead, each claim must be its own patent application with its own attendant fees and investigation.
- Patents cannot be transferred except in the case of succession (death of the original holder, corporate restructuring). Simply disbanding a corporation would terminate patent protection.
- Failure to take action immediately upon discovering patent infringement is deemed to be a non-revokable license grant to the infringer. Thus, if a defendant can demonstrate that the patent holder reasonably had knowledge of his activities, that is considered adequate defense to a patent suit. Things like sending a traceable request to the patent holder for a license grant but receiving no reply would qualify. The duration of “immediate” must, of course, take into account commercially reasonable response time based on the method of discovery. Enforcement can be as simple as “we grant you a royalty free license to do what you are already doing.”
- A pattern of neglect in patent enforcement (failing to act upon discovery of infringement) may be construed as a general royalty free license grant to the world. In general, the more cases where enforcement is neglected, the more easily a future defendant can use this defense.
There are many other points I could raise but many of them are more general. Things such as punitive fines being based on cash flow and assets of the perpetrators should obviously apply in general.
I have no illusions that the above will ever happen or that it will work out exactly as I would expect if it ever did happen. Still, in my opionion it makes a reasonable starting point.