In “Why Software Patents Are Not Fixable” Marco points out how completely broken the current U.S. patent regime is, and why it’s a giant mess for everybody. Smartly, he lays blame at the doorstep of the US Patent and Trademark Office. In that, we are in 100% agreement.
Like Marco, I’m not a lawyer, but at one point I thought I wanted to be one. I got into a pretty good law school, and prepared for the patent bar, which is required to file patents with the USPTO[^why I quit]. With that background, I think I can add some more to what Marco is saying.
Why the USPTO Sucks at Its Job
Marco explains the two big requirements for a patent: novelty and non-obviousness. You can check novelty by looking at prior art, and I’m not sure how big a problem that ends up being in practice. Non-obviousness is a different story; I think this is where the system is falling apart. How come?
Patents take a long time to get. In fact, Austan Goolsbee, Obama’s former head economics advisor, made the rounds on the TV last week touting acceleration of the patent granting process as a bi-partisan measure that would help the economy. I don’t recall exactly what the average is for being granted a patent, but I know it’s measured in years. So it’s not like patent examiners are rushing through these things and shooting them out without looking at them. There’s a lot of work that goes into the examination process.
The next logical question you might ask, then, is who are these patent examiners? That’s great question. Here are the requirements to become a Patent Examiner for the USPTO:
- Be a US Citizen or National.
- Be willing to live/work in the D.C. area.
- Have a 4-year degree in a science or math discipline.
That’s it. Work experience helps, but basically the USPTO is just looking for people with an educational background in the art the patents are based on. A bachelor’s degree is considered “ordinary skill” by the USPTO.
And that is the problem. The bar for “ordinary skill” is set far too low. In the sciences, we nearly universally agree that the people that know what’s going on are the one’s with Ph.D.s. Bachelor’s degrees simply don’t carry a lot of weight in the biological sciences standing next to Ph.D.s and M.D.s. Yet to the USPTO, a person with a B.S. is qualified to determine if a medical device an M.D./Ph.D. has invented is a non-obvious invention. Seriously.
I’m sorry, but that’s just not how it works. A B.S. degree is the beginning of one’s journey in mastering an field, not the end. Which is why there’s another degree called Master, and terminal degrees called Doctorate. Having a degree doesn’t even mean the person is a competent practitioner in the field, let alone skilled enough to judge patents.
Now, it’s entirely possible that 100 years ago, when cutting edge technology literally involved a sharp blade and better levers, normal users of a tool might have had “ordinary skill” in the art, but today the fields of science and technology are so huge and so complex that it’s simply not credible to believe a non-Ph.D. could know what is really going on in the peripheries of the field.
What’s worse, the longer a person is a patent examiner, outside the field they’re supposed to be policing, the less they’ll know about what is new and exciting in their field. Counter-intuitively, a patent examiner is probably most qualified to judge non-obviousness the day they’re hired by the USPTO, and decline every day thereafter.
Why Software Patents Might Be Fixable
Understanding all that, I think there are some obvious solutions to the patent crisis. The USPTO needs more qualified examiners to determine the merits of a patent. My suggestion would be to look to the peer review model academia uses. Yes, yes, yes – that’s not a perfect system, but it’s miles better than what the USPTO is doing, and might even work better for patents than for journal articles.
Here’s what you do: make patent reviewing a requirement for all federal research grants, and give rewards to reviewers in terms of prestige and priority access to key talks and meetings. That would give you a huge pool of quality academics – experts in their fields – to review patents, and give incentives to people, particularly younger faculty, to step up and get involved. Have a three person committee review each patent based on non-obviousness, while the USPTO’s patent examiner does the logistical work (checking prior art, checking drawings, etc). This way we get to keep the current crop of examiners, but ensure we get a better review of a patent’s merits.
Moreover, the incentives for academics reviewing patents more closely aligns with society’s goals in granting exclusivity. That is, they want to prevent dangerous and over-broad patents from restricting innovation, but don’t want the patent process to grind to a halt, lest their own ability to get patents is compromised. Right now, patent examiners have zero skin in the game – they don’t work in the field anymore (assuming they ever did), so who cares if someone gets a patent that screws everyone else up? I trust the experts to set the bar where it needs to be – high enough to prevent riff-raff from getting patents that could destroy an industry, but low enough that real invention is still being protected.
There are still problems unique to software patents that might make them untenable. Marco might be right to say the system is broken beyond repair, but I’m not sure. I am sure, however, that there’s no way we’d get rid of the patent system, even if just for software. To keep advancing as a society, we’re going to need an innovative solution to the software patent problem.