Make patents like copyrights

Gavin R. Putland identifies a “patent” rort.

Labor's proposal to penalize drug companies for abusing patents is ad hoc and does not address the fundamental problems of patent law. Those problems are threefold.

First, if you independently invent and market something which, unknown to you, is covered by a patent, you are liable for breaching the patent. This law is not justified by the purpose of patents, which is to encourage people to invent things that would not otherwise be invented — not to reward them for claiming ideas that someone else would soon have thought of anyway. The present law actually discourages innovation, because anyone who wants to profit from a bright idea must either risk being sued for breaching someone's patent, or devote enormous resources to searching the patent literature for any patents covering the idea — and still risk missing something.

Second, patents are being granted for increasingly trivial ideas. Hence the risk of inadvertently breaching patents and the cost of avoiding such breaches are both ballooning out of control, increasing the disincentive to innovate.

Third, patents are obtained through an elaborate administrative and legal process, the cost of which is incurred even if you don't have to sue anyone for breaching your patent or defend any suit challenging the validity of your patent. Hence the corporations that can most readily use patents to stifle their competitors' innovation are the ones that already have the most money.

To restore “freedom to innovate”, patents must protect only against the deliberate theft of ideas, must not be granted for trivial or obvious ideas, and must be granted automatically, without any legal process. Whether one party has stolen another party's idea must be a question of fact to be decided by the evidence, not a question of law to be decided by who first deposited the correct paperwork at the correct offices with the correct (exorbitant) fees.

In other words, patents must be made more like copyrights.

[Letter rejected by the Sydney Morning Herald. Posted here Jan.8, 2010.]