Patents Redefined

[Jonathan Buhacoff]

Summary of the proposal:

Redefine patents and overhaul the patent system to serve its purpose more effectively. Instead of an exclusive grant to the patent holder to make, use, and sell that invention for a period of time, the redefined patent would 1) drive innovation by making disclosed inventions available for anyone to use; 2) reward inventors in alignment with continued and increased use of their inventions; 3) protect inventors and society by eliminating the concept of transferable patent ownership; 4) reduce patent filing cost for inventors and their employers; 5) nearly eliminate patent-related litigation costs for inventors, corporations, and courts.

Under the redefined patent system, inventors would send their invention disclosures to the patent office. When an invention disclosure is accepted, a patent number would be issued to the inventors and the invention would be published by the patent office. Anyone creating a new product would register it with the patent office. If the product directly uses any inventions, these must be listed in a patent manifest which would be included in the registration. The company can update the registration and patent manifest anytime as it makes changes and improvements to the product. Registering a product would have a minimal fee.

The company does not pay for the use of any of the inventions it cites in the manifest. The incentive to report correctly comes from the ability of inventors to sue for correction of record if their invention is included in a product and not cited in its manifest, or for the government to sue for correction of record and damages if inventions that are not included in the product were cited in the product manifest. Corporations already report their income to the government. Corporations will also report which products were sold in a year and the quantity of each product that was sold. The government will then assign points to inventors whose inventions were directly and indirectly used in products sold that year.

When an inventor has accrued points equal to or greater than the minimum payout threshold, the government sends a payment to the inventor. The minimum payout threshold is necessary for the government to avoid a huge expense in sending payments in comparison to the payments themselves (for example not to spend $1.00 to send a $0.05 reward). The government also has a maximum payout threshold and tracks the cumulative payouts to each inventor. When an inventor has reached maximum payout, the government continues to track points but no longer sends the payments to that inventor. Instead, inventors who have reached the pinnacle are recognized by the patent office at that point and also with subsequent awards as inventors reach higher thresholds.

This proposal aligns with the proposed right to kudos and proposed right to creative benefit by creating a patent system in which inventors opt-in by registering their inventions with the government, companies can cite those inventions and register sales and revenue numbers with the government, and the government coordinates compensation for inventors. Inventors can, of course, choose to keep their inventions a secret and make whatever money they can that way, but will not be able to use lawsuits to extract money out of other people who imitate the invention.

Problems with the existing patent system

A patent is a grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.

The existing patent system gives the patent owner an exclusive right to practice it, which is intended to promote invention by guaranteeing some amount of time for the inventor to benefit from it financially before everyone else can copy it, and it does that but it also has two awful types of abuse:

1) Someone patenting an invention and never intending to practice it, or trying and failing, and later when someone else invents essentially the same thing and practices it, even if they developed it completely separately, the original patent owner sues them and tries to get a lot money for “damages” when the original patent owner has not really lost anything since they weren’t in business selling that invention anyway — this is known as a patent troll.

2) Someone can buy the patent rights to a medicine and then hike up the price to abuse sick people who need it; there is little financial benefit to the original inventor and it’s taking unfair amounts of money from sick people who don’t have any other choice because nobody else can make that medicine because of the patent and they might die before the patent expires.

Drive innovation by making disclosed inventions available for anyone to use

The process starts with an inventor who has developed a method or design, either working alone or with others (who should be named as co-inventors), independently or employed by a corporation or government agency. The inventor sends an invention disclosure to the patent office.

The rules for what is patentable would be similar to the current rules in the United States — a disclosure must be specific enough to be useful to someone else who is “skilled in the art”, and it must describe something new that is not already disclosed in “prior art” nor is an obvious application of “prior art”. Abstract ideas would not patentable. When filing, the inventor has to do a search on prior art, reference it, and point out what improvement or change is being made relative to the prior art (or what new capability is being invented that never existed before).

Because the purpose of the invention disclosures is to facilitate other people using them, the inventor should also disclose the benefits or advantages of their invention, and any known limitations, constraints, disadvantages of their invention. Some people are uncomfortable pointing out what might be perceived as flaws in their own work, but this is an important step in both informing people who will use the disclosure in their work and also to invite further contributions — another inventor might come along and have an idea on how to improve on it.

An inventor can and should publish articles about their work to get praise and criticisms, and this can happen before or after disclosing the invention to the patent office. Unlike the current system, having a work published earlier does not disqualify an inventor from receiving the patent. When the inventor files the invention disclosure, the inventor should also mention all prior publications involving the same disclosure. This actually helps the inventor in case there is a dispute later.

Patent filings are never rejected outright due to being “obvious” or “covered” by prior art – they stay in the public record forever. But they may be tagged as “covered” by prior art with reference to it. To remove the tag the inventor would have to show and explain what is different. The patent is updated to be just the part that is new with references to the prior art.

Unlike the existing patent system, in this proposed patent system the inventions are free for the public to use and are non-exclusive.

Reward inventors in alignment with continued and increased use of their inventions

Inventors don’t get any exclusive rights to practice the inventions. What they do get is points for every instance where their patent was referenced as prior art that someone improves on (with their own patent) and when their patent is referenced in an actual product, they get points for sales volume of that product. All patents referenced in a product get the points.

The government collects sales tax which varies by product and corporate income tax which varies only by revenue and not by industry. In addition to these taxes, corporations will file a sales report indicating which products were sold and in what quantity. Each product will be linked to its manifest listing the components and inventions directly used in its design. The government already has the manifest for each component because it’s a product registered and sold by another company, and the government already has the record on all the other inventions referenced by these inventions. This product sales filing with the government is used to award points to inventors whose inventions were used in the product directly or indirectly. When inventors get to a certain number of points, they can start receiving checks from the government for their contribution. Inventors can thereby earn a passive income stream for some period of time. They get more income or more time if they get to some next level. But there would be a maximum, and when the inventor reaches that limit they won’t get more money but will continue to accrue points.

Eventually the inventor might get some awards for high score. They’re already been paid for their contributions with money, but their contributions continue to be used or they invented more because they continue to be employed in a research and development or engineering job, or on their own because they’re awesome. They can get a national innovation award.

With this system inventors want other people to take their idea because they still get credit for it. Referencing their idea won’t cost manufacturers anything. The taxes stay the same, the points get assigned to everyone, it’s only the dollar amounts given to inventors that change when more patents are added, but that is ok because 1) when economy grows more dollars are spent to be divided over all the patents being referenced so it’s still significant, 2) when inventors or their heirs reach the earnings limit they don’t get any more money so that makes room for other inventors to get paid more significantly, 3) inventors still earn points for other recognition beyond money and that recognition is unlimited.

Protect inventors and society by eliminating the concept of transferable patent ownership

In this proposal, the rewards of inventions go to the inventors. Even when the inventor is employed by a corporation, the patent is issued to the inventor. The employer’s name, or in the case of a group submission the employers’ names, recorded on the disclosure, are kept for a public reference. The patent issued to the inventors and any associated benefits to the inventors are non-transferable.

This protects inventors by ensuring they personally benefit from their disclosures, and encourages people to invent and disclose useful things. Even an inventor who is a government employee would get the same benefits.

Employers will continue to need the knowledge, skills, and creativity of inventors and will continue to pay them. They just don’t get to claim ownership of the inventions. This protects inventors by ensuring that they get compensated for their contributions to society. This also protects society from the phenomenon known as patent trolls — companies who buy patents and don’t make anything, but instead focus on suing other companies who are using those inventions and try to extract money from them via a lawsuit.

Reduce patent filing cost for inventors and their employers

The filing cost for disclosing an invention are reduced to only those costs necessary to establish the utility and novelty of the invention. Currently patent holders must pay maintenance costs for the issued patent after some time, and these would not be necessary under this proposal.

Companies will need to register their new or improved products with the government, including a patent manifest that lists which inventions were directly used in the manufacture or use of the products, and also file their quarterly sales reports listing the product, quantity sold, and total revenue from that product. If the product is sold as part of a bundle, the companies can describe that and estimate the share of revenue attributable to that product, or divide the share of revenue equally among all products in the bundle.

The reduced operating expenses for business means that the cost of products and services may be cheaper (or government can collect more sales tax and its affordable).

Nearly eliminate patent-related litigation costs for inventors, corporations, and courts

Much of patent-related litigation currently involves allegations of infringement. Under the proposed patent system, that would never happen because everyone has permission (and is encouraged) to use the disclosed inventions. The cost of patent-related litigation would simply be avoided.

Instead, patent-related filings and disputes would be in the following categories and will be far less expensive to resolve:

* A person contributed to the invention but was not credited in the disclosure as an inventor. Evidence of collaboration with the inventors listed in the disclosure can help resolve this — meeting calendars, meeting notes, lab notes, communications, etc.

* A person was credited in the disclosure as an inventor but did not contribute to the invention. Evidence of non-collaboration, non-participation, or that the person’s role was more of an assistant than a co-inventor can help resolve this — meeting calendars, meeting notes, lab notes, communications, etc.

* A product directly uses an invention but the product manifest does not cite it, causing the inventors to be deprived of points that should have been assigned to them. The inventors will benefit when this is corrected by being recognized for their contributions. If an inventor see a product and look up its references and don’t see their patent listed, they could file a grievance. Let the patent office review it, if it’s covered by the inventor’s patent they just correct the record and assign the inventor the uncredited points from past sales records (which doesn’t take away from anyone else’s points), and the company that omitted the citation will pay the inventor’s legal fees. If the inventor loses, meaning the patent office has decided the invention correctly did not cite their patent because it’s not applicable, the inventor pays the investigation and filing fee. Once an inventor receives previously uncredited points, the income for that inventor is adjusted as necessary (they start getting payments for that they were “owed”, but they don’t get it all at once because it’s just part of the whole budget, they do get interest on the payments they didn’t receive and that interest is paid by the company that should have referenced them and didn’t).

* A product does not use an invention but the product manifest cites it anyway, causing the inventors to accrue points which are not due to them. The government and the people will benefit when this is corrected by not overpaying. The patent office may also receive filings from the public (with a fee to cover processing) to allege invalid citations, meaning a company has cited an invention as used in their product when it’s not actually used in their product. The patent office takes a cursory look at the allegation and determines if a full investigation may be warranted. If an investigation concludes the citation was valid, no action is taken and the submitter is notified. If an investigation concludes the citation was invalid, points awarded to the inventors for that citation are revoked, any money paid for that citation is then listed as a debt owed by the inventors to the government (typically to be deducted from future paychecks but if it’s a large amount the repayment schedule is accelerated), a penalty is assessed against the company for an incorrect patent manifest, and the person who submitted the allegation is refunded their filing fee and awarded a bounty which paid from the penalty assessed against the company.

The fees paid by the loser ensure the patent office can afford to do these investigations and discourage frivolous claims.

So companies want to reference all relevant patents so they don’t need to pay omission penalties. But if they err in the other direction and list patents that don’t cover the invention, the government can sue them for giving credit where it’s not due (costing the government and other inventors money) and get back from the company as a penalty any money that was paid to inventors incorrectly due to the bad reference as well as penalty and interest to the government (which helps to fund the patent investigations). This gives companies a narrow and righteous path to giving credit where it’s due, not giving it where it’s not due, and in exchange companies are able to use any publicly disclosed invention without asking for permission, saving them lots of money they would otherwise have paid on research, negotiation, lawsuits, and licensing, or even the possibility that they can’t make the product at all for some years because they weren’t able to negotiate a license.

Disputed claims

Everyone who files a patent gets a receipt with the filing receipt date and a sequence number for that date (every patent received on that date gets a number in a sequence starting with “1”). The inventor with the earliest receipt date or earliest confirmed publication date gets the patent on that innovation.

If the inventions are similar enough and were published around the same time — for example if the patent office typically takes 6 months to process and publish a disclosure and receives a second very similar disclosure from someone else during that time — and it can be shown that neither inventor copied from the other, the government may combine the disclosures into one patent (but keep the original descriptions separate) and merge the inventor list for the patent issuing (but keep each inventor’s name together with their invention disclosure) so that both sets of inventors share in the recognition and rewards.

However, once an invention disclosure is published, any later disclosures must treat it as prior art unless there is a dispute where someone claims and succeeds in proving an earlier publication. If it shown that the inventor who received the patent knew about the other publication, the patent can be revoked and re-issued to the successful claimant, points re-assigned, and money recovered and redistributed. However, if it shown that the inventor who received the patent did not know about the other publication, the patent can be amended to also list the other inventor, to attach the other invention disclosure to it, as if the two disclosures were received about the same time as discussed above. In that case, the inventor who has been receiving points and rewards does not give anything up, and instead the other inventor also receives the points and their rewards start from the filing date (and there is no back payment), and from that filing date onwards the rewards are shared by all co-inventors.

• This topic was modified 12 months ago by Jonathan Buhacoff.

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