A proposal on patent reform

In theory the purpose of patents is to increase the public domain by providing temporary incentives to spur innovation. In that spirit patents are supposed to be limited to things that would not be obvious to one versed in the art.

However patents have lead to many problems.

First is the question of which ideas are obvious, and which are not. This is not a simple question at all. The patent office has resolved this question by being fairly lenient about which patents are granted, thinking that the issue can always be resolved in litigation. However people are reluctant to litigate, so invalid patents are acquired in great number. The theory goes that any individual one is unlikely to stand up, but if I threaten you with a dozen patents at once, my odds of having at least one stand up are pretty good. This set of incentives leads to a lot of overly broad patents that are pretty obvious, which causes uncertainty for others.

Second you have the issue of how long patents are good for. When it comes to drugs, a multi-year search and FDA approval can only be recouped from a long patent. When it comes to software a 17 year patent warps the market for many generations of technologies. Thus there can be no simple balance between encouraging innovation and unnecessarily hobbling further advancement. (Many people in software think patents shouldn't apply there. Certainly patents do a lot of damage in the software world, but as Paul Graham points out, if you're against software patents then you're against patents in general.)

Third we have the challenge that areas that change rapidly have a lot of opportunity for being the first to face a particular problem. If you're first to face a problem then it is easy to get a patent. Given that the patent office is lenient on granting them, you're likely to get it. So we tend to see very intense patent activity in areas that change rapidly. However those are exactly the areas where patents do the most to inhibit further progress!

My proposal addresses these issues.

I propose that no patent shall be accepted unless the technologies that make the discovery feasible and commercially viable have been broadly available for at least a decade.

If the problem has been solvable and a solution desirable for at least a decade but nobody has done it, that is evidence that the solution is not obvious to one versed in the art. Conversely if the solution quickly occurs to someone fairly shortly after the problem has become both solvable and commercially interesting, that is evidence that it wasn't really that hard. Furthermore it is exactly advancements in fields that are rapidly changing where patent protection does the most economic harm.

Why did I choose a decade? I chose it as a round number that is fairly close to half the length that a patent lasts. My theory being that if nobody has discovered it in that length of time, then the odds are reasonably high that nobody would have discovered it in the time the patent restricted the use of the invention, and therefore we have evidence that the net economic result caused by granting the patent is positive.

Of course, like any attempt at compromise on a controversial issue, I am sure it will satisfy nobody. But I don't think it is that bad either.