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Gigaom: Can big data fix a broken system for software patents?

In Slate’s Farhad Manjoo: Use Crowdsourcing to Improve Patents and Kill Patent Trolls, I explained why the focus on patent trolls is misguided; and why using crowdsourcing and incentives to increase the quality of prior art brought to the patent office’s attention, to improve patent “quality” by weeding out “bad patents”–is also misguided. And that improving patent quality will address the patent troll problem. And that improving patent “quality” is not a desired solution since the low quality of patents and the patent examination process has little to do with the threat patents pose to innovation and the economy.

Derrick Harris’s Gigaom post, Can big data fix a broken system for software patents?, is also on the wrong track. The post explores various proposals to use “data analytics” to improve prior art searches for fields like software patents.

Big data won’t solve all the complaints people have about patents, but it could make life a lot easier for the inventors, attorneys and examiners tasked with determining whether a patent infringes a previous patent, or is even patent-worthy in the first place. The question now is whether the USPTO wants to leave simplification of the process in the hands of private parties like IP Street, or if the agency wants to bring a few big data experts on board and improve what it’s able to offer those who rely on it.

For the same reasons as I laid out in the Manjoo post, this ain’t gonna do the trick. Improving prior  Even if every software patent that issues is 100% “valid” (that is, non-obvious and novel in view of all prior art), they are still a threat to property, liberty, innovation, and the economy. They are still anti-competitive; the very  purpose of patents is to protect favored companies from competition. (See EU newsflash: patents are anticompetitive!Intellectual Property Advocates Hate CompetitionIP Rights as Monopolistic Grants to Overcome the Public Goods Problem; Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property.)

Improving prior art databases or search methods will not do much good. Nor will addressing the “patent troll” problem. The problem is not trolls, overbroad patents, junk patents, inept patent examiners, software patents, etc. The problem is the very idea of patents.

And why do we want to “make life a lot easier for the inventors, attorneys and examiners tasked with determining whether a patent infringes a previous patent, or is even patent-worthy in the first place”–? Why make it easier for a patent examiner to issue a patent? Why make it easier for the attorney for a patent aggressor to determine that a competitor is infringing the patent? Why improve the overall impression that patents are legitimate by improving patent quality? The truth is nothing is “patent-worthy”. Why pretend that any invention “really” “deserves” a grant of monopoly privilege from the criminal-protectionist state?

As for real reforms: I laid out some suggested incremental patent and copyright reforms in Radical Patent Reform Is Not on the Way and How to Improve Patent, Copyright, and Trademark Law. In the case of patents, significant reform would include things like:

  • Reducing the Patent Term
  • Removing Patent Injunctions/Providing Compulsory Royalties
  • Adding a Royalty Cap/Safe Harbor
  • Reducing the Scope of Patentable Subject Matter
  • Providing for Prior-Use and Independent-Inventor Defenses
Recent patent reform, however, made almost no appreciable improvement, with the exception of a broadened prior-use defense (see The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly).
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