A trivial patent filter for the PTO inbox?
One problem with the patent system is that it makes no distinction between inventions which are inherently difficult to come up with, and ones which are much more innovative. A simple fix would be for patents to be time release: A patent is written for something secret, then it’s kept under wraps for some amount of time, probably a few years. At the end of that time, it’s unsealed, and patent protection applies for everything mentioned in the patent which wasn’t rediscovered in the meantime. This would help with the problem that patents are generally granted to whoever first tackles a problem, regardless of how inevitable the solution to that problem might be.
Smart! The only issue with this is that it won’t work. Here’s why:
While a patent application is in quarantine, the invention does not enjoy any protection. In fact, as a precondition for this proposition to work at all a quarantined invention must not enjoy any protection. Unfortunately, thus is ensured that no genuinely non-trivial invention can be implemented in products while a patent application for it is in quarantine – otherwise a competitor could reverse engineer the product and file a patent application of their own about the same technology, thus effectively torpedoing the initial application. Meanwhile, there’s no actual disincentive on filing trivial patents on the off chance that they get approved, although most of these applications will end up cancelled. So in effect, this proposition simply defeats the patent system, rather than fixing it. Which, I suppose, is still a valid way of fixing it…
My own proposition is much simpler and makes no attempt to filter trivial patents on the technical level of the process: software patents, if at all allowed, expire in 4 years; other patents expire in 8. The effects are thus:
The sheer brevity of the time span under protection puts pressure on patent holders to act on their patents, whether by implementing, enforcing, or both.
Pure IP licensing companies (which currently contribute very little progress to the overall system), if still profitable, will have to run significant R&D budgets to stay ahead of the expiration wave.
Most importantly, though, near-compulsory, mass enforcement of trivial patents would coerce the industry into self-corrective action. The necessary controls to influence the PTO process while a patent application is under consideration already exist. Never underestimate the powerful language of defecting money in getting companies to do your bidding.
Currently the system is balanced off-kilter because so long as you stay small and the behemoths do not perceive you as a potential threat, you can stay clear of trouble. If that option is removed from the system, it will be forced to shift to rebalance.
Of course, it would be better for algorithms not to be eligible for patenting at all.