The case against patents
Linked by Thom Holwerda on Tue 5th Feb 2013 16:49 UTC
Legal "The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded - which, as evidence shows, has no correlation with measured productivity. Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative. A properly designed patent system might serve to increase innovation at a certain time and place. Unfortunately, the political economy of government-operated patent systems indicates that such systems are susceptible to pressures that cause the ill effects of patents to grow over time. Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow, we discuss in the conclusion a set of partial reforms that could be implemented." Written by economics professors Michelle Boldrin and David K. Levine, published in the winter issue of the Journal of Economic Perspectives. Via John Siracusa.
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RE[6]: one easy limitation
by galvanash on Wed 6th Feb 2013 03:04 UTC in reply to "RE[5]: one easy limitation"
galvanash
Member since:
2006-01-25

http://en.wikipedia.org/wiki/Reasonable_person

If your from the US, our patent law has a similar concept...

http://en.wikipedia.org/wiki/Person_having_ordinary_skill_in_the_ar...

I think the overall point your missing is that the patent clerks job is to judge the patent based on these legal fictions... Their personal expertise in technical matters has nothing to do with it.

In other words, the patent clerk is supposed to put themselves into the shoes of someone having "ordinary skill in the art" when judging a patent - and I strongly stress supposed to. The reality is they pretty much just approve anything and let the courts work it out, which is most of the problem in itself.

Edited 2013-02-06 03:09 UTC

Reply Parent Score: 4

RE[7]: one easy limitation
by some1 on Wed 6th Feb 2013 05:36 in reply to "RE[6]: one easy limitation"
some1 Member since:
2010-10-05

http://en.wikipedia.org/wiki/Reasonable_person

So how does this contradict anything I've said?
Decisions to grant patents are made by patent clerks. Why do you think they will be any better at evaluating drawings than at evaluating text, which they currently do? If a clerk grants a bad patent that affects you, your best bet at invalidating it is typically going to court.

Next, from your link
The reasonable person (historically reasonable man) is one of many tools for explaining the law to a jury... As a legal fiction, the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.

So this is a standard that jury can use to make a decision. In the context of this thread it's not even clear who you apply this standard to. The patent clerk? He/she has no responsibility for granted patents. In any case, the decision is made by the jury (laymen), based on their understanding of what's "reasonable." The only way people with relevant skill and knowledge are allowed is as expert witnesses, and both sides are sure to bring their own to argue their way.

Their personal expertise in technical matters has nothing to do with it.
In other words, the patent clerk is supposed to put themselves into the shoes of someone having "ordinary skill in the art" when judging a patent

You're contradicting yourself. There's no way one can put themselves into the shoes of a person having relevant skills without actually having them. You cannot answer the question "Would this be obvious to me if I had ordinary skill in the field?" without the skill.
But this is not the way patent clerks work or are supposed to work. Patent clerks are experts in their subject patents. They basically treat them as text. For every new patent they find claims in previous patents that read similar to new claims, and ensure new claims are worded sufficiently differently. They do some sanity checking, like rejecting claims that are obviously too broad, but given they are not experts or even practitioners in the field, there's not much they can do. I posted about this before: http://www.osnews.com/permalink?525537

Reply Parent Score: 2

RE[8]: one easy limitation
by kwan_e on Wed 6th Feb 2013 06:32 in reply to "RE[7]: one easy limitation"
kwan_e Member since:
2007-02-18

"http://en.wikipedia.org/wiki/Reasonable_person

So how does this contradict anything I've said?
Decisions to grant patents are made by patent clerks. "

Mostly because you said this:

Patents are not granted by "a reasonable person", they are granted by patent office clerks.


This may or may not be correct, but you don't seem to understand what is meant in law.

Reply Parent Score: 2

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RE[8]: one easy limitation
by galvanash on Wed 6th Feb 2013 07:00 in reply to "RE[7]: one easy limitation"
galvanash Member since:
2006-01-25

So how does this contradict anything I've said?


It doesn't. You ask for relevant links... I posted a few.

So this is a standard that jury can use to make a decision. In the context of this thread it's not even clear who you apply this standard to. The patent clerk?


If the system was actually designed to work, then yes - the patent clerk. But keep reading...

You're contradicting yourself. There's no way one can put themselves into the shoes of a person having relevant skills without actually having them. You cannot answer the question "Would this be obvious to me if I had ordinary skill in the field?" without the skill.


If I was unclear... I don't mean the clerk should not use their own technical expertise. What I mean is they should judge the patent through the scope of one who is "ordinarily skilled in the art". Exceptional talent at deciphering legalese is not generally relevant nor should it be - yet that is nearly the sole area of experience with the average patent clerk. If it is a software patent one ordinarily skilled in the art should be able to read it - i.e. someone skilled in software should be reviewing a software patent...

But this is not the way patent clerks work or are supposed to work. Patent clerks are experts in their subject patents. They basically treat them as text. For every new patent they find claims in previous patents that read similar to new claims, and ensure new claims are worded sufficiently differently. They do some sanity checking, like rejecting claims that are obviously too broad, but given they are not experts or even practitioners in the field, there's not much they can do.


Yes, that is true. It is also part of the problem. If the standard of the law is that a patent should be useful to someone ordinarily skilled in the art, and if it is judged in such a way in court (that is what the law says), then it is reasonable to expect that it must meet this requirement to be granted in the first place. But it absolutely is not... That is why I strongly stressed that it was how I thought it was supposed to work.

It obviously doesn't work this way and frankly I don't know how it could without putting undue burden on the patent clerks. I really don't have a solution to the problem - just pointing it out.

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