h a l f b a k e r yBirth of a Notion.
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Nowadays, you don’t want to invent too far into the future, because the clock on patent protection starts as soon as you file an application. This produces a lot of small inventions, but few really big inventions, because by the time the big invention would be commercially profitable, most or all of
the 20 year time period of patent protection would be used up. With a Future Patent option, at issuance, the patent holder could opt for a protection time period somewhere in the future. For example, for a patent issuing today, the patent holder could choose protection starting 10 years from now and ending 20 years after that (minus the time between initial application and issuance).
Until the protection period kicked in, anyone could use the invention without a license.
This would be great for drug companies, because they wouldn’t be punished as they are now by the tremendous delays caused by FDA mandated testing. And there wouldn’t be the pressure to push stuff into the marketplace too fast.
On the other hand, this would also allow companies to design around future patents before the protection period even started. So it would encourage innovation.
Choosing your own time period with the Future Patent option creates a lot of flexibility that doesn’t exist now, where every invention, great or trivial, is treated the same.
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If the US government wants something, they can just take it. And if it's a matter of national security (such as a weapons system), they can slap a secrecy order on it, leaving the application in limbo. One patent with a secrecy order was delayed for 60 years. |
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[blaise] Due to the recent “harmonization” of the US patent system, the ability of companies and a few inventors (mainly Jerome Lemelson) to stretch things out in the prosecution phase was eliminated. Those delaying tactics constituted an informal Future Patent system, the advantages of which have now been lost. Future Patents brings those advantages back, but in an open air way. Without secrecy there are no submarine patents.
In fact, Future Patents is just a logical extension of pre-issuance publication. Presently, submarine patents still exist, because US patent applications are still secret in many cases. So when such a patent issues, without warning, the blow would be softened if it was not immediately enforceable.
If a company was in the position to manufacture a profitable item for a few years, using the information in a patent, they might do so to get into the market, while simultaneously working on a design around. Whether they failed in getting around the patent or not, it would give greedy companies another incentive to put technology to use, which, after all, is one purpose of the patent system.
In the case of improvement patents that you mentioned, continuations and continuations-in-part would have the same effective dates as the parent (or the first election in a chain of patents).
[blissmiss] Thanks! |
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As a patent litigator who has represented both patent holders and accused infringers, it seems to me that it would be better not to have a patent system at all than to implement this scheme. The justification you've suggested is an interesting one, so I'm not going to rant about the obvious harm to the public and the economy that this would create. Your argument is that this would promote innovation, which is the only possible reason to adopt something like this. Otherwise, well, for the non-patent professionals - just imagine if the Bell folks today held a legal monopoly on telephones. Or what about patents on basic silicon-based transistors, invented just a few decades ago? |
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So, by picking your monopoly period, you "promote innovation" by encouraging design arounds. No. A patent holder is going to select what it thinks is the profit maximizing period. Part of that decision will be the likelihood of the emergence of alternative technologies (design-arounds). It would pick the period far enough in the future to maximize profits, while still close enough to limit the damage from alternative approaches. Further, most sophisticated technology companies hold many patents on different but essential aspects of their inventions. True that many of these are continuations and CIPs, but they don't have to be. I think that, at least in some instances, it would be relatively easy to monopolize markets for extremely long periods of time -- I'm talking about the better part of a century here -- by the judicious assertion of series of separate but related patents. |
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As for the drug companies - well you could give them an extension of you'd like. I wouldn't. But you certainly shouldn't do this. |
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Big fat fishbone to this one. |
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I agree with you in some respects – naturally companies would consider carefully what period would give them the maximum return. And doing so, they would never select a time too far out, unless the technology was equally far out. Companies are rather short sighted when it comes to money, and would rather have it sooner than later. Besides which there is inherent unpredictability to the lifetime of technology. For high tech inventions, the tail end of the present 20 year period might be worthless, due to obsolescence. But it has been my experience that when you add up the time that is required for development and marketing of a complicated invention, the 20 year monopoly is sometimes not a sufficient reward. And with the clock ticking with the initial filing, as it has been since harmonization, the value of improvement patents shrinks rapidly. |
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//...filing an application early, in an attempt to gazump your opposition...//
Well, unfortunately, first-to-file was one of the few things that was not adopted under harmonization. It's still first-to-invent in the US. This favors big companies, since they keep better records. |
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I think you'd have to really tighten up on the technical specification requirements for prospective "future" patents. Some patents I've seen are more like vague premonitions of inventions, rather than actual inventions. |
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