Mark Cuban’s Proposals to Improve Patent Law

by Stephan Kinsella on January 31, 2013

As I noted in The tepid mainstream “defenses” of Aaron Swartz, the patent system is imposing devastating costs on life, property, and liberty:

Patents impose hundreds of billions of dollars of cost on the economy and impede and distort innovation and competition; patent literally kill people (millions of people have died from AIDS in Africa because Big Pharma and the US have blocked generic drugs in the name of patents; by making cars less safe; by denying lifesaving drugs to people with Fabry disease); patents even impose censorship, and are threatening the entire industry of podcasting; patents give rise to free trade restrictions by blocking drug reimportation.

Most people are bamboozled by assurances from bespectacled authorities that we “need” such laws, but not everyone falls for their propaganda. Brilliant entrepreneur Mark Cuban sees through this nonsense; see my previous posts Mark Cuban Bashes Patents on Shark Tank;  Mark Cuban Funds EFF’s New ‘Mark Cuban Chair To Eliminate Stupid Patents’Mark Cuban: Patent law is killing jobs.

In Mark Cuban’s Awesome Justification For Endowing A Chair To ‘Eliminate Stupid Patents’, Cuban proposes some changes to patent law. Every one of these is a good idea, each of which I have proposed before. See, e.g., my post

How to Improve Patent, Copyright, and Trademark Law, which suggests the following changes to patent law (the ones Cuban also favors are bolded):

  • Reduce the Patent Term
  • Remove Patent Injunctions/Provide Compulsory Royalties
  • Add a Royalty Cap/Safe Harbor
  • Reduce the Scope of Patentable Subject Matter [Cuban: no software or design patents]
  • Provide for Prior-Use and Independent-Inventor Defenses
  • Instantly Publish All Patent Applications
  • Eliminate Enhanced Damages
  • Add a Working/Reduction to Practice Requirement
  • Provide for Advisory Opinion Panels
  • Losing Patentee Pays
  • Expand Right to Seek Declaratory Judgments
  • Exclude IP from Trade Negotiations
  • Increase the threshold for obtaining a patent
  • Increase patent filing fees to make it more difficult to obtain a patent
  • Make it easier to challenge a patent’s validity at all stages
  • Require patent applicants to specify exactly what part of their claimed invention is new and what part is “old” (e.g., by the use of European-style “characterized in that “claims)
  • Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one)
  • Limit the number of claims
  • Limit the number of continuation applications
  • Remove the presumption of validity that issued patents enjoy
  • Apportion damages to be proportional to the value of the patent

Cuban also suggests getting rid of software patents altogether, which I of course also favor, though I am skeptical of the ability to do this so long as method (process) patents are permitted. He is also in favor of eliminating design patents, which I also agree with.

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