Shared publicly  - 
Patent curbing idea no 124

Small change in rules of a complex system can have significant impact on that system. That's the premise of the "Butterfly Effect".

Patent system is widely considered to be broken and creating opposite effects to those that it's supposed to generate.

Latest example is Honeywell's patent lawsuit against Nest ( where they claim Nest infringes 7 of their patents but the patents in question seem obvious.

I believe small change in rules could significantly cut down on the number of bad patents (either obvious or ones with prior art).

Today one pays for processing the patent application regardless of the outcome. Patent office doesn't have incentive for rejecting patents because the patent application can be re-submitted, clogging the incoming queue even more.

The fees might be significant for individuals but most patent application are from companies making billions of dollars, for whom patent fees are insignificant compared to potential benefits of getting multi-year monopoly on a given idea and, as is case in Honeywell's lawsuit, trying to squash honest, hard-working competition.

The end result is that rich companies throw any idea at patent office hoping that some of them will stick.

My idea: introduce heavy penalty for patents that are rejected for failing obviousness or prior art tests, say 10x the cost of processing the patent.

The patent can be re-submitted but the penalty for rejection would increase every time.

I believe that would do wonders for quality of patents. Patent office would have an incentive to actually do a good job of filtering obvious patents or those with prior art and heavy cost would deter companies from knowingly submitting low quality patents with high probability of being rejected, freeing patent office resources to investigate patents that pass company's confidence test.

As a minor modification, I would exempt individuals from paying the penalty as a recognition that the rule is meant to prevent the system from being abused by rich with resources to flood the system with lousy patents, not penalize individual inventors. I assume there are ways to prevent abuse of that rule by finding creative ways for companies to apply for patents as individuals and then transferring the ownership to companies.

This is only one of many ideas for curbing patent abuse that I had.
Elazar Leibovich's profile photo
I've had the exact same idea, but it's really problematic I think:

1) The main issue - poor people/small startups will fear from issuing a patent lest they'll be fined, either that or issuing a failed patent will still be economical.

2) Your solution at the bottom remark is problematic. Why do you make the distinction between individuals and big companies? Will you make a similar distinction between small startups/tiny companies and huge tycoons? The distinction is problematic.

3) Who will judge if the fee is acceptable or not? People will flood courts with objections to the patent office ruling that a patent is invalid.

And, if you're already making such a distinction - you can make something much simpler. The rich will pay more for a patent than the poor. You don't need to change the system at all, and you get the same effect.
Add a comment...