Patently brilliant

The patent system is unfair, expensive and counterproductive. New thinking may save the day
Written by Leader , Contributor

The Peer To Patent Project is getting off the ground, and it looks like one of the most encouraging developments in intellectual property this decade.

The problem with patents isn't their basic premise — that an inventor is granted a period of exclusive control over their invention in return for publishing the details. Nor is it in the limitations to what can be patented. To get legal protection, the invention must be a practical device that is non-obvious, non-trivial and novel.

The trouble lies in applying those limitations. With tens of thousands of patents granted every year, the various patent offices have neither the skill, manpower or time to check them adequately . The default is to grant the patent and rely on the courts to strike it down if subsequently it turns out to be unfair.

Even that would be okay were the courts themselves efficient, cheap and fair. They're not: court cases take a long time, cost a fortune and, since both parties have to pay costs in patent cases, heavily biased towards the richer party. If you're a big company, you can guarantee that you'll get 10 companies to pay a £1m licensing fee rather than have even one pay £2m in court costs to overturn your patent. Having seen this sort of licensed blackmail at first hand, we have no doubts about its abusive and iniquitous nature.

What we need is a huge pool of experts to examine patents and highlight problems before the patent office decides. As the open source community has shown, if you give people a chance to use their expertise for the common good they'll leap at the chance. Now, as the open source community has also shown, we have the technology to create exactly that chance.

And that's where the Peer to Patent Project comes in. By exposing new patent proposals to public debate among the informed, the existence of prior art — examples where the patent idea has been used before — can be demonstrated well before it's too late. With sponsors such as Microsoft, IBM and Red Hat, it's a rare example of the industry turning consciously away from insanity.

IT depends more than any other industry on innovation, and it is only fitting that everyone realises this. Yes, we need protection for new ideas, but it must be limited protection for geniunely new ideas, fairly applied. The Peer to Patent Project has every chance of achieving this balance. If it succeeds, it should show the way for non-IT industries to create their own forums for justice.

Law 2.0, here we come.

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