Answering to a CACM «Viewpoint»: on the patent review process

I am submitting a comment to Wen Wen and Chris Forman’s Viewpoint on the Communications of the ACM, titled Economic and business dimensions: Do patent commons and standards-setting organizations help navigate patent thickets?. I believe my comment is worth sharing a bit more openly, so here it goes. Nevertheless, please refer to the original article; it makes very interesting and valid points, and my comment should be taken as an extra note on a great text only!

I was very happy to see an article with this viewpoint published. This article, however, mentions some points I believe should be further stressed out as problematic and important. Namely, still at the introduction, after mentioning that patents «are intended to provide incentives for innovation by granting to inventors temporary monopoly rights», the next paragraph continues, «The presence of patent thickets may create challenges for ICT producers. When introducing a new product, a firm must identify patents its product may infringe upon.»

The authors continue explaining the needed process — But this simple statement should be enough to explain how the patent system is broken and needs repair.

A requisite for patenting an invention was originally the «inventive» and «non-obvious» characteristics. Anything worth being granted a patent should be inventive enough, it should be non-obvious to an expert in the field.

When we see huge bodies of awarded (and upheld) patents falling in the case the authors mention, it becomes clear that the patent applications were not thoroughly researched prior to their patent grant. Sadly, long gone are the days where the United States Patent and Trademarks Office employed minds such as Albert Einstein’s; nowadays, the office is more a rubber-stamping bureaucracy where most patents are awarded, and this very important requisite is left open to litigation: If somebody is found in breach of a patent, they might choose to defend the issue that the patent was obvious to an expert. But, of course, that will probably cost more in legal fees than settling for an agreement with the patent holder.

The fact that in our line of work we must take care to search for patents before releasing any work speaks a lot about the process. Patents are too easily granted. They should be way stricter; the occurence of an independent developer mistakenly (and innocently!) breaching a patent should be most unlikely, as patents should only be awarded to truly non-obvious solutions.