A Good Reading Material for my law students of Debating & Mooting Class:
Debate: Do Patents Help or Hinder Innovation?Are patents the springboard of all innovation, or just roadblocks for major breakthroughs?[/b][/size][/color]
From big time companies to wannabe inventors tinkering away in their garages, most entrepreneurs have an opinion on whether the current patent system helps or hinders innovation. Depending on who you ask, patents are either the springboard of the most forward-thinking ideas on the planet, or just a piece of paper that’s delaying a major technological breakthrough. Our contributors gave their two cents on whether patents help or hinder innovation.
What exactly is a patent? A patent is essentially a deed to an idea. Just how you might hold a deed to your home, a patent is a document that states that you alone have the right to a specific piece of (intellectual) property. Therefore, you have the sole right to use that idea as you see fit. So, whenever an entrepreneur wants exclusive rights to their brainchild, they file for a patent. This has been the standard in the U.S. for over 200 years.
U.S. patents are judged based on four criteria: the invention must be of a patentable subject matter, it must have a new aspect, it must be a non-obvious innovation and it must be useful. If your innovation fits those requirements, you’ve got yourself a patent.
But applying for a patent is a time-consuming and expensive process. Those applying for a patent must provide around 40 pages of descriptions, drawings and information detailing how exactly an invention works. In exchange for this information, successful patents are granted a 20-year monopoly on an idea. But that comes with conditions. An innovator must renew their patent every few years, which requires additional fees. If they fail to renew, the invention could be placed into the public domain in less than 20 years.
The filing process is complicated, so entrepreneurs usually require a patent attorney and about $5,000 to $20,000 to correctly submit their application. FYI: A patent doesn’t guarantee a big payout. If your invention isn’t marketable and makes $2 after you pay $20,000 for a patent, that’s your problem.
Using someone else’s patent is guaranteed to be either expensive or illegal. Once a patent is granted (about half are), other inventors must seek the permission of the patent holder to build off of, or create a version of, the patented product or process. This permission can be denied by the patent holder or it can be granted — often for a substantial price tag.
But if a patent holder catches someone infringing on their patent, they can sue for a whole lot of money. In a patent suit, it doesn’t matter if the infringer was aware of the patent when the alleged infringement occurred. The choices: either pay up (usually a few thousand) for infringement or defend the suit. And a good defense is costly.
After 200 years, shouldn’t this system be updated? Some people are saying yes. The current patent debate is heavily centered around the concept of an open source movement. This conversation became national news in summer 2014 when Tesla Motors CEO Elon Musk announced the company would make its patents available to anyone who in “good faith” wanted to use the company’s technology. Supporters of an open source movement, like Musk, want to do away with patents entirely because they claim patents support big businesses while hurting the rest of us.
But some are critical of the open source movement, stating patents hinder copycats from profiting from another person’s intellectual property, while encouraging innovation by giving big payouts to successful innovators. This group says the proof is in the policy. They claim that nations without patent systems, such as developing nations, aren’t the one’s with impressive innovations and economies. Nations with patent systems, like the U.S. and countries in Europe, are, leading innovation in all major sectors.
But those who support an open source movement claim patents are only hindering innovation by stopping inventors from building off of each other’s ideas without being sued for infringement. They claim that innovation in today’s world is cumulative, and a system that worked in the 1800s doesn’t work now.
What else are people saying? Other concerns in current conversation have to do with patent quality. Many people critical of the U.S. patent system say the Patent and Trademark Office is suffocating under piles of patent applications. And I mean piles. In 2011, more than 1 million patent applications were pending in the U.S., with thousands more filed each day.
This critical camp claims that low-quality patents are slipping through the cracks during the 17 hours allotted to review a 40-page patent application. This group says there are simply too many patents applications and not enough time. But others say patent quality isn’t a major issue and that U.S. patent law is working just fine or, at the very most, needs a few minor tweaks.
What about other parts of the world? The majority of countries, and all developed nations, have patent systems. These systems, however, don’t all look the same. The cost of obtaining a patent varies from country to country and restrictions are tighter as you hop from nation to nation, meaning that even if a patent is granted in the U.S. it may not be granted in other countries.
The World Trade Organization approved an agreement on Intellectual Property Rights in 1995, which impacted patents systems worldwide starting in 1996. Under these rules, all countries affiliated with WTO must have patent systems in all fields that deal with technological innovation. Some people think that’s a bad thing, especially in the pharmaceutical sector. Many believe patents are what allow drug companies to price medications at unreasonably high costs, putting them out of reach for low-income communities and developing countries.
I really want to file a patent worldwide. That’s possible, right? Well, not quite. Patents are usually filed for exclusive rights in one country. An invention can be patented for exclusive rights in multiple countries, though different protections apply in different places. In some cases, however, a U.S. patent can be enforced in up to 148 countries. But it will cost you. Between translating your patent application and communicating overseas, the process is anything but a breeze and you only have 18 months to do it after your patent is granted in the U.S.
If you do obtain a patent in one country, however, someone else in another country cannot obtain a patent on that invention once the U.S. patent application publishes. That’s about 18 months after filing.
But some countries simply don’t have patent systems. So you are out of luck there.
What if I don’t want to disclose my super genius idea? You don’t have to! Though patents require that you to disclose exactly how you came up with an idea through detailed descriptions and drawings, there is another option. You can keep how you produce your innovation a secret. A trade secret, to be exact. Many companies, like Coca-Cola and KFC, opt for this route over a patent when it comes to their billion-dollar recipes. A trade secret is simply when an inventor keeps the secret behind their innovation, well, a secret. But if someone figures out your 11 herbs and spices, tough luck.
for further reading:
http://www.debateout.com/debate-patents-help-or-hinder-innovation/
