Microsoft's premature patent proposal

In a corporate blog post this week, Microsoft Vice President Horacio Gutierrez promoted the idea of a "harmonized, global patent system," in which all the nations adopt common standards for processing and approving patent applications.

Properly done, patents approved in one country could become enforceable in other countries, as is the case with copyrights under the terms of the Berne Convention.

I really have no problem with harmonization if it is properly done, but I think it would be tremendously difficult to achieve good results. The reality of patent protection is radically different from that of copyrights because patents are allowed based on the merits of the application; someone has to make a judgment call.

Would nations be able to compete for patenting fees on the basis of their approval rate? After all, who could say whether I invented a new audio calibration standard here in Cupertino--or Costa Rica, if I just happened to visit a patent agent while on holiday there? Even if this wasn't allowed, I expect all nations would begin to relax their standards in order to give their local inventors an edge in the global marketplace--a classic "race to the bottom."

Or would there be just one international patent bureau, perhaps run as an agency of the United Nations? I shudder to think how that would turn out, with the General Assembly dominated by smaller nations with little vested interest in patent protection.

Unfortunately, Gutierrez takes the latter position:

In today's world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body.

Not only does he want an international patent bureau, he wants to create a new international court system with global enforcement powers. The potential for abuse here is truly staggering.

But as objectionable as I find that proposal, my real issue with Gutierrez's post is that it's completely irrelevant to the real problems with the worldwide patent system.

Gutierrez summarizes:

Big challenges certainly confront the global patent system: Escalating patent application backlogs; lengthening pendency periods; increasing costs of patent prosecution; dubious patent quality due to the global explosion of prior art and the time allowed to examine applications; and examination inefficiency due to duplication of work by multiple offices.

Removing the duplication would help a little. About half of U.S. patents go to non-resident inventors. That fraction is increasing, and it's already larger in most other countries because of the stronger emphasis on innovation in U.S. companies. Letting inventors go through the process just once, in their own countries, would eliminate the duplication. But again, I think this approach would create more problems than it solves.

In any event, a factor of two here or there is not going to solve the fundamental problem of patent quality. The high percentage of bad patents in the system--and believe me, I can personally testify to how many bad patents are out there--undermines the whole system.

I've been thinking about this problem for over 20 years now, and I have some suggestions:

Problem statements. All patent applications should include a statement of the specific problem(s) the claimed invention is intended to solve. These problem statements should be published immediately and anonymously, along with whatever prior-art references have been disclosed--but no details of the invention itself. The problem statements and prior-art references would be taken as narrowing the scope of the invention. The public would then be free to point to known solutions, or even submit new ones, which would create a presumption of obviousness if they happen to coincide with the filed claims.

Claim standardization. One social benefit of the patent system is to publish inventions so that others may use them, either immediately if a license is made available, or after the patent expires. A published patent may also serve as the foundation of further inventive work. But patents are difficult for humans to understand and are practically immune to reliable machine analysis and searching. I think patent claims should use a standardized grammar and vocabulary that eliminates ambiguity and precisely identifies the scope of the invention. Although defining these new standards would be a difficult and lengthy process, the rewards would be tremendous.

Examination fees. As an inventor myself it pains me to say this, but examination fees must cover the actual costs of examination. That means charging enough to let the patent office hire enough qualified examiners to handle applications as quickly as they come in, rather than letting a backlog develop. Published problem statements and standardized claims will help a lot, higher fees may cut down on bogus patent filings, and we'd all like to see the patent office managed better. But ultimately, the system has to support itself.

No triple damages. U.S. law provides for triple damages when someone "knowingly, deliberately, intentionally, willfully, or wantonly" infringes a patent. But these damages are routinely awarded whenever there is evidence that an infringer was aware of a patent, even if the knowledge played no role in product development or there was truly some reasonable disagreement as to whether the patent was relevant. As a result, this law discourages study of existing patents, which is directly contrary to the constitutional purpose of the patent system. Knowledge alone is not a bad thing; we shouldn't penalize it.

I'm sure there are many other good ideas out there for improving the U.S. patent system. We need to talk about them, and we need to find solutions to our own problems before we even start thinking about globalization.