Sunday, April 22, 2012

Patent Infringement

Patent infringement is a major problem in the US.  Part of the problem is that the electronic tech world and the biotech world have very different needs, yet both have strong lobby's.

Biotech needs very strong patents because their products take a huge amount of work and testing to discover and prove safe.  It is very difficult to find/create new medical treatments, making the invention process expensive.   Then, implementing it, you need expensive quality control checks.   The extensive testing makes sure that only working ideas get patented - otherwise you are forbidden from producing goods.

Software however is very different.  Here it is very easy to come with ideas, taking almost no effort, and quality control is practically nothing.  People can create it in a day, then patent the idea, and little or no testing - or searching for prior art is done.   Because it moves so fast, people can honestly not even be aware of prior art.

These two industries differ in many other ways, but they have a large amount of control over changes in the patent law, because they have very different needs.

But there are a couple of ways we can help the problems of patent law.

  1. Outlaw Non-Disclosure agreements for patent lawsuits.  (NDAs)There are people that engage in patent trolling.  They sue for large amounts then settle for small ones.   Mainly because a patent lawsuit can cost millions of dollars to defend, but sometimes because they are guilty.   It is always the bad guy that wins by having a non-disclosure agreement.  ALWAYS.   If you win a large amount of money because the slime bag violated a real patent, then he wants to keep it secret to maintain his reputation.    If you are a patent troll who settles for tiny amounts of money, you want to keep it secret to help you get more money from your next victim.   NDA's are pretty much only wanted by the bad guys in Patent Lawsuits and should be outlawed.  Yes, this might make certain patent suits harder to settle.  But it could kill lawsuits before the courts get involved - if no patent lawsuit was filed yet, you could still get an NDA>  This would save people a lot of money on lawyers.
  2. We need to treat different patents differently.   Design patents last 14 years, while general patents last 20.  No reason we can't further expand the system.  For example, a healthcare cure is the most desirable thing, but treatments that don't cure are WAY more profitable.  Grant real cures longer patents, say 30 years, while restricting treatment cures to just 10 patent years.  The software industry moves very fast and costs practically nothing to ramp up from selling one product to selling worldwide 7 billion copies in less than a month.  So reduce the duration to only 7 years.  On the other side, we could offer a special "Main Business Patent", in which a company can declare a single patent that is central their business to be the Main Active Business Patent.  This one patent and only that patent could be extended to 25 year.   Only a top level corporate entity or person could hold such a patent.  I.E.  no creating five subsidiaries and having each own 5 Main patents. 
  3. Patent cases are overturned on appeal far more often than other cases.   We need patent only judges.  Patent cases involve much higher expertise on both the nature of the technology and patent law itself.   (Source)
Please note that these three ideas are generally patent neutral.  They don't help either side completely, instead giving a little bit to each of the opposing sides..

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