Date: Mon, 2 Feb 1998 02:31:04 -0800 (PST)
From: Phil Karn 
Since I usually disagree with Mr. Lehman's self-serving remarks about the patent system, I was somewhat surprised to find myself agreeing with him about the proposed changes to the patent system that would provide for early publication of applications, prior use rights, and expanded re-examination procedures.

Yet these cosmetic changes don't go nearly far enough to fix a fundamentally flawed system that is now near collapse. The sad fact is that the patent system has become, on balance, a major drag on innovation.

If patents are intended to protect significant R&D investments, then why do I see tens of millions of dollars routinely spent prosecuting and litigating trivial patents where the R&D "budgets" in question consist of perhaps a half hour of an average engineer's time?

The answer is obvious. The patent system remains an anachronism in today's climate of deregulation and pro-competition antitrust laws. It's the one remaining way you can still destroy your competition -- and the government will even help you. It's as if the government preached nonproliferation on the one hand while gladly handing out nuclear land mines for home defense to anyone who applies.

Perhaps things wouldn't be so bad if patents were granted only for new and non-obvious inventions as the law requires. But the patent office is the engineering employer of last resort, and patent examiners are almost uniformly incompetent. And they're paid to issue patents, not deny them.

Here's some other suggestions. Require mandatory licensing of all patents. Treat independent reinvention as evidence of obviousness (i.e., unpatentability), instead of invoking a costly winner-takes-all "interference" process. Match patent terms to the development rate of a field; 20 years is an eternity in the computer field where product cycles are measured in months. Ban software patents entirely -- copyright and trade secret are far more appropriate mechanisms here.

I'm sure such reforms would be utterly unthinkable to the "intellectual property community" that profits so handsomely from the present state of affairs. So be it. That will only hasten the complete collapse of the system.

Phil Karn
San Diego, CA